Muhammad v. Onondaga County Sheriff's Office Justice Center et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________________________________
Ali Muhammad,
Plaintiff,
v. 9:24-CV-872
(BKS/MJK)
Deputy Jayuan Willis, et. al.,
Defendants.
__________________________________________________________________
Ali Muhammad, Plaintiff, pro se
Michelle K. Dekay, Esq., Asst. County Attorney, for Defendants
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Brenda K. Sannes, Chief U.S. District Judge:
ORDER AND REPORT-RECOMMENDATION
Chief United States District Court Judge Brenda K. Sannes
referred Defendants’ motion to dismiss to the Court for a report and
recommendation.1 In this pro se civil rights action, Plaintiff Ali
Muhammad claims that Defendants violated his constitutional rights
while he was detained at the Onondaga County Justice Center. For the
reasons below, the Court recommends granting Defendants’ motion to
dismiss in its entirety.
1 The District Court has the authority to refer dispositive motions to this Court
under 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
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I. BACKGROUND
A. Facts
On February 5, 2024, officials charged Muhammad with, among
other things, assault on staff and violent conduct. (Amended Complaint,
Dkt. 8-1, at 1) Three days later, a non-party DOCCS hearing officer held
a disciplinary hearing, and that same day, the hearing officer found
Muhammad guilty of one or more charges in the misbehavior report. Id.
The hearing officer sentenced Muhammad to 200 days of confinement
in the Special Housing Unit, and 200 days of lost package and
commissary privileges. Id.
On March 7, 2024, DOCCS transported Muhammad to the
Onondaga County Justice Center. (Amended Complaint, Dkt. 8, at pg.
2). After Deputy Willis “booked” him, Deputies Willis, Demko, and
Cullen “brought” Muhammad “directly to segregated housing.” Id. at 2-
3.
Sometime later, Deputy Morris informed Muhammad that he
“would not be receiving any change of clothes because” he “would not be
[at the Justice Center] for long.” Id. at 2. But Muhammad remained at
the facility in segregated confinement for 20 days without “clean
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clothes,” hygiene products, “correspondence materials, paper, pen,” or
“envelopes.” Id. Further, Captains Moore and Guillame ordered
Muhammad to wear handcuffs and waist chain shackles during
recreation. Id.
At some point, one or more unidentified officials “diagnosed”
Muhammad with “neuropathy in his leg,” and a “broken front tooth,
swollen ankle and sinus brady cardia.” ( Amended Complaint, Dkt. 8, at
pg. 2). Muhammad did not receive “medical attention” from any nurse
or Justice Center doctor. Id. On March 27, 2024, the Justice Center
returned Muhammad to DOCCS’s custody. Id.
On June 11, 2024, DOCCS returned Muhammad to the Justice
Center, and Deputies Willis, Demko, and Cullen “again placed” him in
“Segregated Housing.” ( Amended Complaint, Dkt. 8, at pgs. 2-3). After
the deputies placed him in segregated housing, Muhammad spoke with
Sergeant McPartland and grieved his placement in restrictive
confinement. Id.; see also (Amended Complaint Exhibits, Dkt. 8-1, at
pg. 2-3).
Two days later, Hearing Officer Deputy Kolakowski advised
Muhammad that his restrictive confinement and placement in
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restraints during out-of-cell movement was due to disciplinary sanctions
imposed while he was in DOCCS’s custody, and “the nature of the
charges from the incident.” (Amended Complaint Exhibits, Dkt. 8-1, at
3); see also (Amended Complaint, Dkt. 8, at pg. 3).
On June 21, 2024, Justice Center officials sent Muhammad “to
Upstate Medical Trauma Center for chest pains” and the hospital “kept
[him] overnight.” ( Amended Complaint, Dkt. 8, at pg. 3). Muhammad’s
treating physician “requested [a] 14-day cardiac monitor event” but one
or more unidentified Justice Center officials “told [the] hospital to not
place [one] on plaintiff” because DOCCS officials would do so when he
was returned to DOCCS’ custody. Id. The next morning, Muhammad
was returned to DOCCS’ custody. Id.
B. Procedural History
Muhammad commenced this action by filing a Complaint and
moving proceed in forma pauperis (“IFP”). (Dkts. 1, 2). This Court
granted Muhammad’s IFP application, reviewed the allegations in the
Complaint, and dismissed Muhammad’s § 1983 claims without prejudice
for failure to state a claim upon which relief may be granted. ( Dkt. 4).
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On November 6, 2024, Muhammad filed an Amended Complaint.
(Dkt. 8). This Court reviewed that Complaint, held that Muhammad’s
Eighth-Amendment-conditions-of confinement claim against
Defendants Willis, Demko, Cullen, and Morris survived sua sponte
review, dismissed all remaining claims, and terminated the other
Defendants. (Dkt. 9). 2
On March 11, 2025, Defendants moved to dismiss Muhammad’s
Amended Complaint. On May 12, 2025, Muhammad responded. (Dkt.
21) Defendants replied on May 19, 2025. (Dkt. 22).
II. STANDARD OF REVIEW
Although a complaint “does not need detailed factual allegations”
to survive a motion to dismiss, “a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal quotation omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than the unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
2 The defendant Morris is correctly identified as Jesse Morris. Dkt. 18-1 at fn. 1.
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(2009). A complaint which “tenders naked assertions devoid of further
factual enhancement” will not suffice. Id. Rather, a complaint’s “factual
allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (cleaned up).
When ruling on a defendant’s motion to dismiss, all factual
allegations contained in the complaint must be accepted as true and all
reasonable inferences must be drawn in favor of the plaintiff. Koch v.
Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). But “the tenet
that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Twombly, 550 U.S. at
155. Additionally, “in adjudicating a Rule 12(b)(6) motion, a district
court must confine its consideration to facts stated on the face of the
complaint, in documents appended to the complaint or incorporated in
the complaint by reference, and to matters of which judicial notice may
be taken.” Leonard F. v. Isr. Disc. Bank of New York, 199 F.3d 99, 107
(2d Cir. 1999) (cleaned up).
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III. DISCUSSION
The District Court should dismiss Muhammad’s Eighth
Amendment conditions-of-confinement claim because
Muhammad cannot show that any defendant acted with
deliberate indifference.
The Court recommends granting Defendants motion to dismiss. To
prevail on an Eighth Amendment conditions-of-confinement claim,
plaintiffs must show that the defendants deprived the incarcerated
plaintiff of basic human needs, and the defendants did so with
deliberate indifference to the plaintiff’s health. Not to be missed,
plaintiffs must also show that the defendants were personally involved.
Here, Muhmmad cannot establish the personal involvement of deputies
Willis, Demko, and Cullen. And although he can establish deputy
Morris’ personal involvement, Muhmmad cannot prove either element
of a conditions-of-confinement claim. So the District Court should grant
Defendants motion to dismiss.
* * *
Muhammad brings this action under § 1983, which establishes a
cause of action for “the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws’ of the United States.”
German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537, 573
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(S.D.N.Y. 1995) (cleaned up). “Section 1983 itself creates no substantive
rights, it only creates “a procedure for redress for the deprivation of
rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir.
1993) (citation omitted). “To establish a defendant's individual liability
in a suit brought under Section 1983, a plaintiff must show “the
defendant's personal involvement in the alleged constitutional
deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.
2013) (cleaned up).
To show that conditions of confinement constitute cruel and
unusual punishment in violation of the Eighth Amendment,
incarcerated plaintiffs must satisfy both an objective and subjective
element. Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996). Specifically,
plaintiffs must show that the conditions of confinement resulted in
unquestioned and serious deprivations of basic human needs or deprive
incarcerated individuals of the minimal civilized measure of life’s
necessities (the objective element). See Burrell v. DOCCS, 655 F. Supp.
3d 112, 126 (N.D.N.Y. 2023); Gaston v. Coughlin, 249 F.3d 156, 164 (2d
Cir. 2001). Plaintiffs must also show that the defendants acted with
deliberate indifference (the subjective element). Gaston, 249 F.3d at
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164. “The subjective prong of a conditions-of-confinement claim is
satisfied by a showing that the defendant acted with more than mere
negligence by, for instance, knowing of, and disregarding, an excessive
risk to inmate health or safety.” Garraway v. Griffin, 707 F. App’x 16,
18 (2d. Cir. 2017) (summary order) (cleaned up).
1. Muhammad cannot show that Defendants Willis,
Demko, and Cullen were personally involved in the
constitutional violation.
The Amended Complaint’s sole remaining claim is based on
Muhammad’s allegations that he was not provided a change of clothing,
hygiene items, and correspondence materials for twenty days in March
2024, as well as commissary access. See (Dkts. 8, at 2 and 21, at 2).
Specifically, Muhammad alleges that he did not receive a shirt, two
pairs of pants, deodorant, a cup, two containers of toothpaste, two
soaps, paper, pens, and envelopes. See (Dkts. 8, at 2 and 21, at 2). In his
response to the Defendants’ motion to dismiss, Muhammad specifies
exactly which items he alleges he was deprived of. (Dkt. 21, at 2).
Muhammad’s Amended Complaint, on the other hand, lacks such
specificity, and only describes the alleged deprivations in general terms
(e.g. writing “no hygiene” instead of specifying “one deodorant, one cup,
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two toothpaste, two soaps.”). See (Dkts. 8, at 2 and 21, at 2). In general,
“a court may not look outside the pleadings when reviewing a Rule
12(b)(6) motion to dismiss. But the mandate to read the papers of pro se
litigants generously makes it appropriate to consider plaintiff's
additional materials, such as his opposition memorandum.” Gadson v.
Goord, 96-CV-7544, 1997 WL 714878, at *1, n. 2 (S.D.N.Y. Nov. 17,
1997). Courts may consider statements in a plaintiff’s response to a
motion to dismiss to supplement or clarify the plaintiff’s complaint. See
Milano v. Astrue, No. 05-CV-6527, 2007 WL 2668511 at *2 (S.D.N.Y.
Sept. 7, 2007). Because Muhammad’s response to the motion to dismiss
clarifies the allegations in the Amended Complaint, the Court will
consider Muhammad’s response in its analysis.
Reading the Amended Complaint and Muhammad’s response in a
light most favorable to Muhammad, Defendants Willis, Demko, and
Cullen were not personally involved the alleged constitutional violation.
The pleading does not allege that Muhammad requested clothing,
hygiene items, or correspondence materials from Willis, Demko, and
Cullen at any point. See generally, (Amended Complaint, Dkt. 8).
Further, the pleading does not allege that Muhammad spoke to
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Defendants Willis, Demko, and Cullen about his desire for these items,
or witnessed any of those Defendants provide these items to other
incarcerated persons. See generally, Id. Thus, Defendants Willis,
Demko, and Cullen were not personally involved in the alleged
constitutional deprivation. So the Court recommends that the motion to
dismiss the claim against them be granted. See, e.g., Burrell v. Bell, et
al., No. 22-CV-0770 (BKS/TWD), 2025 WL 2624406 at *9 (N.D.N.Y.
Sept. 11, 2025) (dismissing § 1983 claim because the defendant was not
personally involved).
2. Muhammad cannot show Morris acted with deliberate
indifference even if he was personally involved.
Muhammad’s response to the motion alleges that there is a
Justice Center policy which states that an incarcerated individual is
provided certain clothing, and other things. (Muhammad Response,
Dkt. 21, at pg. 2). Muhammad also alleges that he requested those
items from Morris, and that Morris told him “he wouldn’t be there long
enough to get [the requested items].” (Amended Complaint, Dkt. 8, at
pg. 2; Muhammad Response, Dkt. 21, at 2) (cleaned up). It is reasonable
to infer from these allegations that Muhammad did not receive the
requested items from Morris. Accepting the allegations as true, and
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drawing all reasonable inferences in favor of Muhammad, the Court
concludes that the conversation between Muhammad and Morris took
place upon his transfer to the Justice Center on March 7, 2024, and his
placement in administrative segregation. Still, neither the Amended
Complaint nor Muhammad’s response states that Muhammad protested
or complained to Morris after their conversation. In other words,
Muhammad has not alleged that Morris knew that Muhammad had not
been provided those items after their conversation. Lacking any factual
allegations that Morris knew the items were never provided there is no
basis to conclude that the Amended Complaint plausibly alleges that
Morris “acted with deliberate indifference.” The Court therefore
recommends that the Muhammad’s conditions of confinement claim
against Morris be dismissed.
3. Muhammad’s alleged deprivations are not sufficiently
serious.
Even if Muhammad had offered evidence to show that Morris
acted with deliberate indifference, which he did not, the deprivations
Muhammad alleges are insufficient to sustain an Eighth-Amendment-
conditions-of-confinement claim. Depriving a prisoner of a change of
clean clothes for a significant period of time “could be a deprivation of
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constitutional magnitude.” Jackson v. Annucci, No. 20-CV-02008, 2021
WL 2581340 at *9 (S.D.N.Y. June 23, 2021). Here, Muhammad alleges
that he was left without clean clothes for twenty days, which is an
insufficient amount of time to support an Eighth-Amendment-
conditions-of-confinement claim. See, e.g., McGee v. Pallito, No. 10-CV-
11, 2011 WL 6291954, at * 8 (D. Vt. Aug. 3, 2011) (cleaned up) (finding
that wearing the same clothes for approximately three months is not a
sufficiently serious deprivation); see also Chavis v. Fairman, 51 F.3d
275, 1995 WL 156599, at * 5 (7th Cir. 1995) (unpublished disposition)
(finding that wearing the same uniform for three weeks did “not
amount to the sort of serious deprivations that drag [the plaintiff’s]
conditions of confinement below ‘the minimal civilized measure of life's
necessities.'”).
Muhammad further alleges that he was deprived of soap,
toothpaste, a cup, and deodorant for twenty days. (Muhammad
Response, Dkt. 21, at 2 ). This too does not meet the objective standard.
See Trammell v. Keane, 338 F.3d 155, 165 (2d Cir. 2003) (holding that
17-day deprivation of toiletries including soap, toothpaste, and
toothbrush does not violate Eighth Amendment); see also Chavis v.
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Kienert, No. 03-CV-0039 (FJS/RFT), 2005 WL 2452150 at *21 (N.D.N.Y.
Sept. 30, 2005) (holding that two-month deprivation of toiletries
including soap and shampoo does not violate Eighth Amendment).
Though Muhammad alleges that he was deprived of
correspondence materials, he never states that he requested them from
Morris. See (Amended Complaint, Dkt. 8, at pg. 2-3; Muhammad
Response, Dkt. 21, at pg. 2). Muhammad also never contends that he
requested access to the commissary. See (Amended Complaint, Dkt. 8,
at pg. 2-3; Muhammad Response, Dkt. 21, at pg. 2). In any case, the
unavailability of correspondence materials is not a sufficiently serious
deprivation. See Gardner v. Mental Health Unit of Sullivan Corr.
Facility, No. 07-CV-5535, 2009 WL 1834382 at *2 (S.D.N.Y. June 17,
2009); see also Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986).
Likewise, Muhammad’s lack of commissary access is not a sufficiently
serious deprivation. See Arriaga v. Otaiza, No. 20-CV-06992, 2021 WL
5449849 at *7 (S.D.N.Y. Nov. 19, 2021).
“Conditions of confinement may be aggregated to rise to the level
of a constitutional violation, but ‘only when they have a mutually
enforcing effect that produces the deprivation of a single, identifiable
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human need such as food, warmth, or exercise.’” Walker v. Schult, 717
F.3d 119, 125 (2d Cir. 2013) (quoting Wilson v. Seiter, 501 U.S. 294,
(1991)). Deprivations of a change of clothes and personal cleaning items
fall under the broader category of a hygiene deprivation. These
deprivations, in the aggregate, do not rise to the level of a constitutional
deprivation because they created a temporary lack of access to hygiene.
See, e.g., Chavis v. Kienert, 2005 WL 2452150 at *21 (holding that two-
month deprivation of toiletries including soap and shampoo does not
violate Eighth Amendment).
So even if Muhammad had alleged that Morris knew that he had
not been provided with a change of clothes, hygiene, correspondence
materials, and commissary, Muhammad did not experience a
sufficiently serious deprivation to merit a §1983 claim.
IV. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that Defendants’ Motion to Dismiss (Dkt. 18)
be GRANTED and that the Amended Complaint be DISMISSED; and
it is further
ORDERED, that the Clerk of the Court serve a copy of this Order
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and Report-Recommendation on Plaintiff by regular mail.3
Under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties
have 14 days within which to file written objections to the foregoing
report. Such objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN 14 DAYS
WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and
Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 6(a), 6(e), 72.
October 27th, 2025.
3 The Clerk shall also provide plaintiff with copies of all unreported decisions cited
herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam).
____________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Arriaga v. Otaiza, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 5449849
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Anthony ARRIAGA, Plaintiff,
v.
Joana OTAIZA, et al., Defendants.
20-CV-06992 (PMH)
|
Signed 11/19/2021
Attorneys and Law Firms
Anthony Arriaga, Ossining, NY, Pro Se.
Gee Won Cha, NYS Office of the Attorney General, New York, NY, for Defendants.
MEMORANDUM OPINION AND ORDER
PHILIP M. HALPERN, United States District Judge:
*1 Plaintiff, currently incarcerated at Sing Sing Correctional Facility (“Sing Sing”), proceeding pro se and in forma
pauperis, brings this action under 42 U.S.C. § 1983, alleging that Hearing Officer Joanna Otaiza (“Otaiza”) and New York
State Department of Corrections and Community Supervision (“DOCCS”) Director of Special Housing Donald Venettozzi
(“Venettozzi”, and together, “Defendants”) violated his due process rights in connection with a disciplinary hearing and were
deliberately indifferent to the conditions of his confinement in keeplock at Sing Sing. (Doc. 2, “Compl.”). Plaintiff alleges
further that these were acts of retaliation and conspiracy against him.
Defendants filed a motion to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on May 7,
2021. (Doc. 28; Doc. 29, “Def. Br.”). Plaintiff opposed the motion on June 8, 2021 (Doc. 30, “Pl. Opp.”), and the motion was
fully briefed with the filing of Defendants’ reply memorandum of law in further support of their motion to dismiss on June
21, 2021 (Doc. 31, “Reply Br.”).
For the reasons set forth below, Defendants’ motion to dismiss is GRANTED.
BACKGROUND
Plaintiff filed a lawsuit in March 2016 entitled Arriaga v. Gage, No. 16-CV-01628 (PMH) (“Arriaga I”) regarding, inter alia,
his medical care at Sing Sing, as well as claims against Sergeant Alvarado—who is not a party to this action—for allegedly
confiscating Plaintiff's prescription glasses and cane, and falsifying a misbehavior report against Plaintiff. 1 (Compl. at 4-5,
17). 2 While a motion by Alvarado and others to dismiss Arriaga I was pending, on September 15, 2017, Alvarado searched
Plaintiff's cell and purported to find items that violated Sing Sing's rules, including “excess/altered clothes” and four temporary
passes. (Id. at 3).
Two other correction officers also searched the law library, focusing primarily on workstation #6 where Plaintiff had been
working. (Id. at 2-3). Plaintiff alleges that prior to these searches he had a job as a law library clerk and was housed on the
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Arriaga v. Otaiza, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
“honor block,” also known as the Earned Housing Unit, which afforded him many privileges. (Id. at 2, 8-9). As a result of the
searches, however, Plaintiff was immediately placed on keeplock status and removed from his library law clerk position. (Id. at
8-9). Another inmate told Plaintiff that he overheard staff saying that Plaintiff would be found guilty no matter what “because
they want Plaintiff out of the law library.” (Id. at 4).
The disciplinary hearing began on September 20, 2017 and concluded on October 27, 2017. (Id. at 3). When Plaintiff entered
the hearing room on October 27, 2017, Otaiza already had a guilty disposition completed, even though she had previously
granted Plaintiff's request to review and respond to documents filed by the facility; she read the guilty disposition into the record,
denying Plaintiff any opportunity to respond to or oppose the evidence. (Id. at 8). Otaiza sentenced Plaintiff to ninety days’
keeplock, and loss of recreation, phones, packages, and commissary. (Id.).
*2 On November 14, 2017, Plaintiff appealed the decision to Venettozzi, who affirmed the decision on December 1, 2017.
(Id. at 11-12). On December 15, 2017, Plaintiff filed an Article 78 proceeding in the New York State Supreme Court, Albany
County, challenging the disciplinary determination, and on March 26, 2018, the state court reversed the decision and ordered
that it be expunged from Plaintiff's records. (Id. at 12).
Plaintiff commenced the instant action on August 26, 2020.
STANDARD OF REVIEW
I. Federal Rule of Civil Procedure 12(b)(1)
“Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of an action ‘when the district court lacks
the statutory or constitutional power to adjudicate it.’ ” Schwartz v. Hitrons Sols., Inc., 397 F. Supp. 3d 357, 364 (S.D.N.Y.
2019) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). “The party invoking the Court's jurisdiction
bears the burden of establishing jurisdiction exists.” Hettler v. Entergy Enters., Inc., 15 F. Supp. 3d 447, 450 (S.D.N.Y. 2014)
(citing Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009)). When deciding a motion to dismiss under Rule 12(b)(1) at the
pleadings stage, “the Court ‘must accept as true all material facts alleged in the complaint and draw all reasonable inferences in
the plaintiff's favor.’ ” Id. (quoting Conyers, 558 F.3d at 143); see also Doe v. Trump Corp., 385 F. Supp. 3d 265, 274 (S.D.N.Y.
2019).
When “the defendant moves for dismissal under Rule 12(b)(1) ... as well as on other grounds, the court should consider the
Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying
defenses and objections become moot and do not need to be determined.” Saint-Amour v. Richmond Org., Inc., 388 F. Supp.
3d 277, 286 (S.D.N.Y. 2019) (quoting United States v. New York City Dep't of Hous., Pres. & Dev., No. 09-CV-06547, 2012
WL 4017338, at *3 (S.D.N.Y. Sept. 10, 2012)).
II. Federal Rule of Civil Procedure 12(b)(6)
A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). The factual allegations pled “must be enough to raise
a right to relief above the speculative level....” Twombly, 550 U.S. at 555.
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“When there are well-ple[d] factual allegations, a court should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. Thus, the Court must “take all well-ple[d] factual allegations as
true, and all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff[ ].” Leeds v. Meltz, 85 F.3d
51, 53 (2d Cir. 1996). The presumption of truth, however, “ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ ” Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels
and conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.
*3 A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to less stringent standards than formal
pleadings drafted by lawyers....” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (internal quotation marks omitted)). Because pro se plaintiffs “ ‘are often unfamiliar with the formalities of pleading
requirements,’ courts must ‘apply a more flexible standard in determining the sufficiency of a pro se [complaint] than they
would in reviewing a pleading submitted by counsel.’ ” Smith v. U.S. Dep't of Justice, 218 F. Supp. 2d 357, 361 (W.D.N.Y.
2002) (quoting Platsky v. Cent. Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991)). While “[p]ro se complaints are held to less
stringent standards than those drafted by lawyers, even following Twombly and Iqbal,” dismissal is proper “where a plaintiff has
clearly failed to meet minimum pleading requirements.” Thomas v. Westchester Cty., No. 12-CV-06718, 2013 WL 3357171, at
*2 (S.D.N.Y. July 3, 2013) (internal citations omitted); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even
in a pro se case ... although a court must accept as true all of the allegations ... in a complaint, that tenet is inapplicable to
legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” (internal quotation marks omitted)). Therefore, while the Court must “draw the most favorable inferences that [a
plaintiff's] complaint supports, [it] cannot invent factual allegations that [a plaintiff] has not pled.” Chappius, 618 F.3d at 170.
The Court has also a duty to interpret “the pleadings of a pro se plaintiff liberally and interpret them ‘to raise the strongest
arguments that they suggest.’ ” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994)).
ANALYSIS
I. Lack of Subject-Matter Jurisdiction
The Court, as guided by precedent, turns first to Defendants’ arguments regarding the lack of subject-matter jurisdiction and
dismissal required under Rule 12(b)(1).
A. New York Correction Law § 24
Plaintiff does not specifically identify any state law claims for relief aside from generally referencing the existence of such
claims. (See Compl. at 1 (claiming that the Complaint raises “supplemental state law claims”)). Defendants argue that to the
extent Plaintiff raises supplemental state law claims concerning any constitutional violations, the Court must dismiss those
claims for want of subject-matter jurisdiction. (Def. Br. at 13-14).
New York Correction Law § 24 provides, in pertinent part:
1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against
any officer or employee of the department, which for purposes of this section shall include members of the state board of
parole, in his or her personal capacity, for damages arising out of any act done or the failure to perform any act within the
scope of the employment and in the discharge of the duties by such officer or employee.
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2. Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment
and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the
court of claims as a claim against the state.
N.Y. Corr. Law §§ 24(1)-(2). “The Second Circuit has held that this provision prevents federal courts from exercising pendent
jurisdiction over state law claims appended to federal claims brought pursuant to 42 U.S.C. § 1983.” Sughrim v. New York,
No. 19-CV-07977, 2020 WL 7047697, at *21 (S.D.N.Y. Nov. 30, 2020) (quoting Hassell v. Fischer, 96 F. Supp. 3d 370, 385
(S.D.N.Y. 2015)); see also Davis v. McCready, 283 F. Supp. 3d 108, 124 (S.D.N.Y. 2017) (“[U]nder Section 24, any tort claim
arising under New York law ... must be dismissed for lack of subject matter jurisdiction.”); Cruz v. New York, 24 F. Supp. 3d
299, 309 (S.D.N.Y. 2014) (“Plaintiff's state law claims against Defendants ... are barred because New York Correction Law §
24 shields them from liability for state law claims in both state and federal court.”).
Plaintiff does not suggest that Defendants acted outside the scope of their employment. (See generally Compl.); see also Cruz,
24 F. Supp. 3d at 310 (explaining that “[t]he test to determine whether the defendants’ actions fall within the scope of their
employment is whether the act was done while the servant was doing the master's work no matter how irregularly, or with
what disregard of instructions” (internal quotation marks omitted)). As such, because any state law claims against Defendants
“would be barred in New York state courts, this Court equally lacks jurisdiction over the claims.” Hassell, 96 F. Supp. 3d at
385. While this conclusion requires that any claims pressed under New York state law be dismissed, it does not impact the
viability of any claims under federal law.
B. Eleventh Amendment
*4 Insofar as Plaintiff seeks relief under 42 U.S.C. § 1983, Defendants argue that the claims must be dismissed to the extent
they seek “damages against Defendants in their official capacities....” (Def. Br. at 12). This argument is based upon the immunity
provided under the Eleventh Amendment. (Id.).
The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” U.S. Const. amend. XI. This language has been interpreted to bar suits in federal court, even those arising
under federal law, against a state by one of its own citizens. Woods v. Rondout Valley Centr. Sch. Dist. Bd. of Educ., 466 F.3d
232, 236 (2d Cir. 2006) (citing Hans v. Louisiana, 134 U.S. 1, 15 (1890)). “[A]s a general rule, state governments may not
be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the
states’ Eleventh Amendment immunity when acting pursuant to its authority under Section 5 of the Fourteenth Amendment.”
Nelkenbaum v. Jordy, No. 19-CV-07953, 2020 WL 7630354, at *2 (S.D.N.Y. Dec. 22, 2020) (quoting Gollomp v. Spitzer, 568
F.3d 355, 366 (2d Cir. 2009) (alteration in original)). To that point, it is well settled that “New York has not waived its sovereign
immunity in § 1983 lawsuits, nor has Congress abrogated the State's immunity.” Phillips v. New York, No. 13-CV-00927, 2013
WL 5703629, at *3 (N.D.N.Y. Oct. 17, 2013) (citing Vincent v. Yelich, 718 F.3d 157, 177 (2d Cir. 2013)); see also Keitt v. New
York City, 882 F. Supp. 2d 412, 424 (S.D.N.Y. 2011) (“Magistrate Judge Freeman properly concluded that Keitt's Section 1983,
1985, and 1986 claims against the State of New York and its agencies are barred by the [Eleventh] Amendment.”).
Consequently, because the Eleventh Amendment deprives this Court of subject-matter jurisdiction and neither exception applies,
the claims for relief under 42 U.S.C. § 1983 are dismissed under Rule 12(b)(1) to the extent they seek relief against Defendants in
their official capacities. This result does not affect the 42 U.S.C. § 1983 claims against Defendants in their individual capacities;
and therefore the Court must consider Defendants’ arguments for dismissal under Rule 12(b)(6) as to those claims.
II. Failure to State a Claim Upon Which Relief Can Be Granted
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Reading the Complaint liberally, Plaintiff asserts claims against each Defendant for violations of the First, Eighth, and Fourteenth
Amendments under 42 U.S.C. § 1983. That law provides, in pertinent part, that “[e]very person who, under color of any statute ...
subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured....” 42 U.S.C. § 1983. “[T]his language does not create
substantive rights; rather, it creates a mechanism by which individuals can vindicate the violation of rights secured elsewhere.”
Santucci v. Levine, No. 17-CV-10204, 2021 WL 76337, at *3 (S.D.N.Y. Jan. 8, 2021). “As such, in each permutation of a claim
under that law, a plaintiff must demonstrate: (1) a right secured by the Constitution or laws of the United States was violated,
and (2) the right was violated by a person acting under color of state law, or a state actor.” Williams v. Novoa, No. 19-CV-11545,
2021 WL 431445, at *5 (S.D.N.Y. Feb. 5, 2021) (internal quotation marks omitted).
*5 Defendants advance a variety of arguments as to why Plaintiff's claims for relief should be dismissed. The Court addresses
these arguments seriatim.
A. Failure to Plead Defendants’ Personal Involvement
As a fundamental prerequisite “[t]o establish[ing] a § 1983 claim, a plaintiff must show the defendants’ personal involvement
in the alleged constitutional violation.” Boley v. Durets, 687 F. App'x 40, 41 (2d Cir. 2017) (citing Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994)). Failing to allege that a defendant was personally involved in, or responsible for, the conduct complained
of renders a complaint “fatally defective on its face.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (internal
quotation marks omitted). Moreover, as recently emphasized by the Second Circuit, the fact that a defendant is a supervisor is
not enough to impute personal involvement onto that actor; rather, “supervisory liability requires that the ‘defendant, through
the official's own individual actions, has violated the Constitution.’ ” Novoa, 2021 WL 431445, at *6 (quoting Tangreti v.
Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)); see also Greene v. Sampson, No. 18-CV-06103, 2021 WL 355477, at *4 (S.D.N.Y.
Feb. 2, 2021).
1. Venettozzi
Venettozzi's role in this action is limited to the following: (1) he is the DOCCS Director of Special Housing (Compl. at 2, 11);
(2) he “was notified of the constitutional violations due to the receipt of and processing of the appeal and letter sent by Plaintiff's
attorney” (id. at 11); (3) he “reviewed [the appeal] and did nothing to take corrective action after learning of subordinate's
unlawful conduct” (id. at 11-12); (4) by affirming the guilty disposition, he denied Plaintiff of “the due process safeguards
specified in the complaint and ... should have upheld those constitutional standards” (id. at 12); and (5) he “creat[ed] a policy or
custom fostering the unlawful conduct” (id. at 12). None of these facts, together or separately, allege plausibly that Venettozzi
was personally involved in the alleged due process violation at the underlying disciplinary hearing, any violation concerning
Plaintiff's conditions of confinement, any First Amendment retaliation, or any conspiracy.
The first allegation involves Venettozzi based on his position in the DOCCS hierarchy; this is insufficient to establish personal
involvement. See Banks v. Annucci, 48 F. Supp. 3d 394, 416 (N.D.N.Y. 2014) (explaining that “a mere ‘linkage’ to the unlawful
conduct through the ‘chain of command’ ... is insufficient to show ... personal involvement”). As regards the second allegation,
simply receiving a letter from an inmate does not render the official personally involved with respect to the subject matter of the
letter. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997). The third and fourth allegations do not establish personal involvement, as
review and affirmation of the disposition of Plaintiff's disciplinary hearing is distinct from the alleged underlying constitutional
deprivation. See Ortiz v. Russo, No. 13-CV-05317, 2015 WL 1427247, at *14 (S.D.N.Y. Mar. 27, 2015) (because “Venettozzi's
involvement was distinct from the constitutional violations Plaintiff has alleged against the other Defendants, he cannot be held
liable under § 1983 for violations that occurred prior to his review and were not ongoing”).
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*6 The last allegation is conclusory and totally devoid of any facts plausibly suggesting that Venettozzi was involved
in any constitutional violation. See Murphy v. Spaulding, No. 20-CV-09013, 2020 WL 7248855, at *3 (S.D.N.Y. Dec. 7,
2020) (claiming that the warden created an “atmosphere” permitting a violation to occur was insufficient to allege personal
involvement); Haywood v. Annucci, No. 18-CV-10913, 2020 WL 5751530, at *5 (S.D.N.Y. Sept. 25, 2020) (noting that the
plaintiff “offer[ed] no factual allegations suggesting that Annucci was present for, knew of, or even had any reason to know about
the alleged” constitutional violation); Ford v. Aramark, No. 18-CV-02696, 2020 WL 377882, at *14 (S.D.N.Y. Jan. 23, 2020)
(dismissing claim against prison official where “the Complaint lack[ed] any non-conclusory allegation” about that official's
personal involvement (emphasis in original)).
As Plaintiff has not alleged facts plausibly suggesting Venettozzi's personal involvement in any constitutional violation,
Plaintiff's claims against Venettozzi must be dismissed.
2. Otaiza
Like Venettozzi, Plaintiff's conclusory allegations of retaliation for filing prior grievances and civil actions against individual
non-parties to this litigation does not impute Otaiza's personal involvement in any First Amendment violation; nor do Plaintiff's
threadbare allegations concerning the conditions of his confinement or a purported conspiracy. Plaintiff's First and Eighth
Amendment claims against Otaiza must therefore be dismissed.
Unlike Venettozzi, however, Plaintiff sufficiently pleads Otaiza's personal involvement in the underlying due process violation.
Plaintiff alleges that Otaiza denied him two “material” witnesses, including the Honorable Shira Scheindlin and Deputy
Commissioner Joseph Bellnier. (Compl. at 4). He further alleges that Otaiza was not an impartial hearing officer in light of her
statement that the witnesses could not talk at the same time, in that she prevented him from making objections to documents that
she permitted him only 24 hours to review, and she had a guilty disposition completed prior to the conclusion of the hearing.
(Id. at 4, 6-8). Accordingly, Plaintiff has pled plausibly that Otaiza was personally involved in the alleged due process violation.
B. Failure to State a Procedural Due Process Claim (Fourteenth Amendment)
The Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process
of law....” U.S. Const. amend. XIV § 1. “[T]o present a [procedural] due process claim, a plaintiff must establish (1) that he
possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.” Joseph
v. Cuomo, No. 20-CV-03957, 2021 WL 200984, at *6 (E.D.N.Y. Jan. 20, 2021) (quoting Adams v. Annucci, No. 17-CV-03794,
2018 WL 4608216, at *6 (S.D.N.Y. Sept. 25, 2018) (alterations in original)); see also Velazquez v. Gerbing, No. 18-CV-08800,
2020 WL 777907, at *9 (S.D.N.Y. Feb. 18, 2020).
Plaintiff submits that his liberty interest was implicated by the disciplinary proceeding in that during his three months in
keeplock, he was consistently served food too cold to eat, and he lost nineteen pounds. (Compl. at 10). Plaintiff alleges that he
remained in his cell twenty-four hours per day, except when he went to “recreation” in a “cage by himself” in the yard. (Id. at
10-11). As a result of the disciplinary decision, Plaintiff was also removed from the Earned Housing Unit honor block. (Id. at
8-9). Plaintiff alleges that in addition to facing a loss of recreation and privileges, phones, packages and commissary, he was
“subjected to second hand smoke of cigarettes, marijuana and K2 everyday” and “had to be in his cell with a wet cloth over his
nose to diminish the effects of second hand smoke, and illegal substances.” (Id. at 9). Plaintiff further alleges he “underwent
mental anguish and emotional distress,” lost his job as a Law Library Clerk, was unable to file grievances, was subjected to
inadequate showers, was denied the ability to purchase hygiene products, and was essentially treated as on outcast. (Id. at 9-11).
These allegations, individually and cumulatively, fail to establish the existence of a constitutionally significant liberty interest
deprivation.
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*7 A prisoner's liberty interest is implicated by prison disciplinary proceedings only if the discipline imposes “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484
(1995); Washington v. Afify, 681 F. App'x 43, 45 (2d Cir. 2017). Indeed, dismissal has been found appropriate where the period
of confinement in relation to disciplinary hearings is shorter than 101 days. Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009)
(“[R]estrictive confinements of less than 101 days do not generally raise a liberty interest warranting due process protection,
and thus require proof of conditions more onerous than usual.”); see also Jackson v. Annucci, No. 20-CV-02008, 2021 WL
2581340, at *10 (S.D.N.Y. June 23, 2021) (no protected liberty interest in inmate's sixty-day keeplock sentence); Reaves v.
Williams, No. 95-CV-00281, 1997 WL 10132, at *5 (S.D.N.Y. Jan. 10, 1997) (no protected liberty interest in Sing Sing inmate's
ninety-day keeplock sentence, sixty-nine days of which were served); Rivera v. Coughlin, No. 92-CV-03404, 1996 WL 22342,
at *5 (S.D.N.Y. Jan. 22, 1996) (no protected liberty interest in inmate's eighty-nine day disciplinary segregation and loss of
privileges); Rosario v. Selsky, No. 94-CV-06872, 1995 WL 764178, at *6 (S.D.N.Y. Dec. 28, 1995) (no protected liberty interest
in eighty-five day confinement in the SHU).
Plaintiff's removal from the Earned Housing Unit and temporary loss of the various privileges alleged in this case, namely
recreation, phone, packages, and commissary, do not represent the types of deprivations which could reasonably be viewed
as imposing atypical and significant hardship on an inmate. Jackson, 2021 WL 2581340, at *4 (ninety-day loss of recreation,
packages, commissary, phone use, and personal property did not implicate a protected liberty interest); see also Keesh v. Quick,
No. 19-CV-08942, 2021 WL 639530, at *7 (S.D.N.Y. Feb. 17, 2021); Frazier v. Coughlin, 81 F.3d 313, 315, 317 (2d Cir. 1996)
(loss of commissary, recreation, package, and telephone privileges did not amount to an atypical and significant deprivation);
Nogueras v. Coughlin, No. 94-CV-04094, 1996 WL 487951, at *5 (S.D.N.Y. Aug. 27, 1996) (“Restrictions on telephone use,
recreational activities, access to law libraries, visitation, personal property, educational and employment opportunities” did not
amount to atypical hardship.).
Plaintiff's other allegations of temporary deprivation of hygiene products, “inadequate showers,” the denial of warm food, and
confinement for the majority of the day do not amount to a constitutional violation. See Trammell v. Keane, 338 F.3d 155, 165
(2d Cir. 2003); McCoy v. Goord, 255 F. Supp. 2d 233, 260 (S.D.N.Y. 2003); Cruz v. Jackson, No. 94-CV-02600, 1997 WL
45348, at *6 (S.D.N.Y. Feb. 5, 1997). “[O]rdinarily, SHU prisoners are kept in solitary confinement for twenty-three hours a
day, provided one hour of exercise in the prison yard per day, and permitted two showers per week.” Ortiz v. McBride, 380
F.3d 649, 655 (2d Cir. 2004). Likewise, Plaintiff's allegations that he was prevented from filing grievances does not establish
the deprivation of a protected liberty interest. Prison grievance procedures “do not confer any substantive right upon an inmate
requiring the procedural protections envisioned by the Fourteenth Amendment.” Torres v. Mazzuca, 246 F. Supp. 2d 334, 342
(S.D.N.Y. 2003); see also Cancel v. Goord, No. 00-CV-02042, 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29, 2001) (“[T]he refusal
to process an inmate's grievance or failure to see to it that grievances are properly processed does not create a claim under
§ 1983.”). In short, Plaintiff has not alleged plausibly that he possessed a liberty interest sufficient to state a claim against
Defendants for a violation of the Fourteenth Amendment and the claim must therefore be dismissed.
In any event, Plaintiff's allegations establish that he received all the process that was due. As regards disciplinary hearings, an
inmate should receive: “(1) advance written notice of the charges against him to enable him to marshal the facts and prepare
a defense; (2) the opportunity to call witnesses and present documentary evidence in his defense, when permitting him to do
so will not be unduly hazardous to institutional safety or correctional goals; and (3) a short written statement presenting the
reasons and evidence supporting any disciplinary action ultimately taken.” Amaker v. Coombe, No. 96-CV-01622, 2002 WL
523388, at *9 (S.D.N.Y. Mar. 29, 2002) (citing Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)). The requirements of due
process are satisfied if “some evidence” supports the conclusion of the disciplinary hearing. Superintendent v. Hill, 472 U.S.
445, 455 (1985).
*8 Plaintiff alleges that he was denied due process at the disciplinary hearing because he was denied two “material” witnesses:
the Honorable Shira Scheindlin and Deputy Commissioner Joseph Bellnier. (Compl. at 4). He further alleges that Otaiza was
a biased hearing officer because there existed a predetermination of guilt. The right of inmates to call witnesses at a prison
disciplinary hearing is not absolute. Wolff, 418 U.S. at 566-67. A prison official may refuse to call witnesses as long as the
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refusal is justifiable. Id. A hearing officer may deny a prisoner's request to call a witness “on the basis of irrelevance or lack of
necessity.” Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991). “[I]f a witness will not testify if called, it cannot be
a ‘necessity’ to call him,” and therefore, a hearing officer's refusal to call such a witness does not constitute a violation of the
prisoner's constitutional rights. Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993). It is very unlikely that either Judge Scheindlin
or Deputy Commissioner Bellnier would have testified as witnesses given their positions and status; and although Plaintiff
maintains that these proposed witnesses would have offered relevant testimony, neither were involved with the charge and
misbehavior reports at issue in Plaintiff's disciplinary proceeding.
Plaintiff's assertion that Otaiza was a biased hearing officer is based upon conclusory and speculative allegations. Plaintiff
alleges that Otaiza was biased based upon her request that individuals not speak at the same time and because she did not permit
Plaintiff to make further objection concerning the alleged late disclosure of documents. (Compl. at 6-7). A basic requirement
of due process is an unbiased adjudicator, who does not prejudge the evidence, and who cannot say how he would evaluate
evidence that he has not seen. Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir. 1990). Plaintiff's allegations, however, do
not give rise to an inference of bias; rather, they go to her discretion in conducting the hearing. Plaintiff's allegations reflect
conduct within a hearing officer's discretion to “keep the hearing within reasonable limits.” Wolff, 418 U.S. at 566; see also
Brooks v. Piecuch, 245 F. Supp. 3d 431, 446 (W.D.N.Y. 2017) (hearing officer was within his discretion in refusing to permit
certain objections at disciplinary hearing). It is beyond cavil that a clear recording of the hearing is necessary to preserve the
record and for transcription of a proceeding in general; it is a common instruction to be given and carries with it no “inference
of a predetermined disposition of guilt.” (Pl. Opp. at 6). Simply because Otaiza “denied evidence or denied witnesses does not
mean that [s]he has prejudged the case.” Pacheco v. Vanwyk, No. 94-CV-00456, 1997 WL 642540, at *12 (N.D.N.Y. Oct. 15,
1997), aff'd, 164 F.3d 618 (2d Cir. 1998). Accordingly, Plaintiff's Fourteenth Amendment claim is dismissed.
C. Failure to State a Conditions of Confinement Claim (Eighth Amendment)
To the extent Plaintiff asserts Eighth Amendment violations for the conditions described supra, the claim fails on the merits.
The Eighth Amendment instructs: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Const. amend. VIII. “To state an Eighth Amendment claim, a prisoner must allege two elements,
one subjective and one objective. First, the prisoner must allege that the defendant acted with a subjectively sufficiently
culpable state of mind. Second, he must allege that the conduct was objectively harmful enough or sufficiently serious to reach
constitutional dimensions.” Novoa, 2021 WL 431445, at *7 (citing Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015));
Sutton v. Rodriguez, No. 18-CV-01042, 2020 WL 5504312, at *4-5 (S.D.N.Y. Sept. 8, 2020). “[T]he deprivation alleged by the
prisoner must be in objective terms ‘sufficiently serious’ such that the deprivation ‘den[ied] the minimal civilized measure of
life's necessities.’ ” Branham v. Meachum, 77 F.3d 626, 630-31 (2d Cir. 1996).
Plaintiff's allegations concerning the conditions of his confinement are the same allegations he pled to support his assertion
that he was deprived of a liberty interest with respect to his Fourteenth Amendment claim. Specifically, the allegations are that
during his three months in keeplock, Plaintiff was served food too cold to eat, lost nineteen pounds, was in his cell twenty-
four hours per day except when he went to recreation, was subjected to inadequate showers, was denied the ability to purchase
hygiene products, and was “subjected to second hand smoke of cigarettes, marijuana and K2 everyday.” (Id. at 8-11). These
conditions are not in themselves “sufficiently serious to provide a basis for an Eighth Amendment claim.” Rivera v. Senkowski,
62 F.3d 80, 85 (2d Cir. 1995); Cruz, 1997 WL 45348, at *6-7.
*9 Because the Complaint fails to satisfy the objective prong, the Court need not, and does not, reach the question of whether
Plaintiff's allegations are sufficient to satisfy the subjective prong. Accordingly, and in addition to the fact that Plaintiff has
failed to plead the personal involvement of either Defendant in an Eighth Amendment violation, this claim is dismissed on the
additional ground that it fails to state a claim for relief.
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D. Failure to State a Retaliation Claim (First Amendment)
“[T]o sustain a First Amendment retaliation claim, a prisoner must demonstrate the following: (1) that the speech or conduct at
issue was protected; (2) that the defendant took adverse action against the plaintiff; and (3) that there was a causal connection
between the protected speech and the adverse action.” Randle v. Alexander, No. 10-CV-09235, 2011 WL 1226228, at *2
(S.D.N.Y. Mar. 22, 2011) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)). An action is “adverse” when it “would
deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights....” Ruggiero v. Cty. of
Orange, No. 19-CV-03632, 2020 WL 5096032, at *7 (S.D.N.Y. Aug. 28, 2020) (quoting Davis v. Goord, 320 F.3d 346, 353
(2d Cir. 2003)). Conduct short of this standard is “simply de minimis and ... outside the ambit of constitutional protection.”
Id. (quoting Davis, 320 F.3d at 353). Likewise, under the third element, the “allegations must support an inference that the
protected conduct was ‘a substantial or motivating factor for the adverse actions taken by prison officials.’ ” Dorsey v. Fisher,
468 F. App'x 25, 27 (2d Cir. 2012) (quoting Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003)). Bearing in mind that “[c]ourts
properly approach prisoner retaliation claims with skepticism and particular care[ ] because virtually any adverse action taken
against a prisoner by a prison official ... can be characterized as a constitutionally proscribed retaliatory act,” Davis, 320 F.3d
at 352 (internal quotation marks omitted), “[c]onclusory allegations will not suffice; instead, a prisoner's claim for retaliation
must be supported by specific and detailed factual allegations.” Vogelfang v. Capra, 889 F. Supp. 2d 489, 517 (S.D.N.Y. 2012)
(internal quotation marks omitted).
Plaintiff alleges that Defendants’ conduct in connection with the disciplinary hearing was taken in retaliation “due to the
numerous grievances, formal complaints and court proceedings Plaintiff filed against ... Sgt. Alvarado.” (Compl. at 1, 4-5). To
the extent Plaintiff alleges that the roots of the alleged retaliation are found in Plaintiff's filing of Arriaga I and his grievances
against Sergeant Alvarado, such conduct constitutes protected activity. The Complaint fails, however, to sufficiently allege an
adverse action and a causal connection between the alleged adverse action and Plaintiff's protected conduct. Dorsey, 468 F.
App'x at 27. Plaintiff alleges that “the retaliation ... is obviously part of Sgt. Alvarado's influence on other staff.” (Compl. at
9). These allegations are speculative and conclusory, and are simply insufficient to support the inference that Plaintiff's filing
of Arriaga I and his grievances against a non-party to this action were a substantial or motivating factor for any of Defendants’
alleged conduct in connection with the disciplinary hearing and affirmation of the guilty disposition. Plaintiff's allegations of
retaliation are made against individuals who are not parties to this action, and he does not allege facts in the Complaint or in his
opposition to this motion that either Defendant was involved in the alleged retaliation or the issuance of the misbehavior report
that led to the disciplinary hearing. Accordingly, Plaintiff's retaliation claims are dismissed.
E. Failure to State a Conspiracy Claim
*10 Plaintiff alleges that the purported retaliation was a conspiracy among Defendants and other non-parties to this action.
To survive a motion to dismiss, the claim must allege facts plausibly suggesting that: (1) an agreement existed between two
or more state actors to act in concert to inflict an unconstitutional injury on plaintiff, and (2) an overt act was committed in
furtherance of that goal. Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002); see also Concepcion v. City of New
York, No. 05-CV-08501, 2008 WL 2020363, at *5 (S.D.N.Y. May 7, 2008) (affirming the continued viability of the Ciambriello
standards when analyzing a conspiracy claim vis-à-vis a motion to dismiss). The plaintiff must not only allege a conspiracy,
but he must also allege the “actual deprivation of constitutional rights.” Romer v. Morgenthau, 119 F. Supp. 2d 346, 363-64
(S.D.N.Y. 2000) (citing Malsh v. Austin, 901 F. Supp. 757, 765 (S.D.N.Y. 1995)). “Thus, if a plaintiff cannot sufficiently allege
a violation of his rights, it follows that he cannot sustain a claim of conspiracy to violate those rights.” Id.; see also Vega v.
Artus, 610 F. Supp. 2d 185, 202-03 (N.D.N.Y. 2009).
As discussed supra, Plaintiff has failed to allege plausibly a violation of his First, Eighth, and Fourteenth Amendment rights.
Thus, any conspiracy claims alleged by Plaintiff in connection with the dismissed constitutional claims are likewise dismissed.
Romer, 119 F. Supp. 2d at 363-64.
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Moreover, to the extent Plaintiff's conspiracy claim rests upon the allegation that a fellow prisoner “overheard staff talking
about ... (Plaintiff) saying no matter what objections or defense Plaintiff brings forth ... Plaintiff will still be found
guilty” (Compl. at 7), it cannot survive the motion to dismiss. State officials carrying out an agency's business cannot conspire
with one another as a matter of law under § 1983. Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1977). Each Defendant is
alleged to be a DOCCS employee during the relevant period and were acting within the scope of their employment. Plaintiff
does not allege facts plausibly suggesting that each Defendant possessed an independent personal purpose so as to satisfy an
exception to intra-corporate conspiracy doctrine. Vega, 610 F. Supp. 2d at 206. Accordingly, any conspiracy claim pled by
Plaintiff likewise fails.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. While “[d]istrict courts should frequently provide
leave to amend before dismissing a pro se complaint ... leave to amend is not necessary when it would be futile.” Reed v.
Friedman Mgmt. Corp., 541 F. App'x 40, 41 (2d Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). In this
case, the Complaint is dismissed with prejudice because any amendment would be futile.
The Clerk of the Court is respectfully directed to terminate the motion sequence pending at Doc. 28, mail a copy of this
Memorandum Opinion and Order to Plaintiff, and close this case. 3
All Citations
Not Reported in Fed. Supp., 2021 WL 5449849
Footnotes
1 On October 2, 2020, Arriaga I was settled and Plaintiff's claims in that action were voluntarily discontinued.
2 Citations to the Complaint correspond to the pagination generated by ECF.
3 Given the conclusions reached herein, the Court need not and does not address Defendants’ remaining argument as to
qualified immunity.
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2025 WL 2624406
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ako K. BURRELL, Plaintiff,
v.
Earl BELL, et al., Defendants.
9:22-cv-0770 (BKS/TWD)
|
Signed September 11, 2025
Attorneys and Law Firms
Plaintiff, pro se: Ako K. Burrell, 17-B-2994, Eastern NY Correctional Facility, Box 338, Napanoch, NY 13021.
For Defendants: Letita James, Attorney General of the State of New York, William A. Scott, Assistant Attorney General, The
Capitol, Albany, NY 12224.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
I. INTRODUCTION
*1 Plaintiff Ako K. Burrell (“Plaintiff”) filed this action pro se under 42 U.S.C. § 1983 asserting claims arising out of his
incarceration at Clinton Correctional Facility. (See generally Dkt. No. 1). Following the Court's initial review of Plaintiff's
complaint pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A, the following claims remain: (1) First Amendment access
to courts against defendants Bell, McIntosh, King, Wilson, and Whitehurst; (2) First Amendment retaliation against defendants
Wilson, Whitehurst, King, and Lt. Sorosa 1 related to Plaintiff's removal from his paralegal position in the law library; (3)
First Amendment retaliation against defendant Benware related to Plaintiff's quarterly review; and (4) Fourteenth Amendment
equal protection against defendants Benware and Webb. (Dkt. No. 6). Defendants Bell, McIntosh, King, Wilson, Whitehurst,
Benware, and Webb (together, “Defendants”) answered the complaint and discovery ensued. (See Dkt. Nos. 21, 22).
Presently before the Court is Defendants’ motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, (Dkt.
No. 90), which is fully briefed, (Dkt. Nos. 90-1, 105-1, 109). For the following reasons, Defendants’ motion is granted in part
and denied in part.
II. BACKGROUND 2
A. The Parties
During the relevant time, Plaintiff was incarcerated at Clinton. (See generally Dkt. No. 1). Earl Bell was the Superintendent at
Clinton from January of 2018, until July 19, 2021. (Dkt. No. 90-3, ¶ 1). Donita McIntosh was the Superintendent at Clinton
from July 19, 2021, until September 18, 2023. (Id. ¶ 2). Marie-Josee King is the current Superintendent at Clinton but was the
Deputy Superintendent for Programs at all times relevant to this case. (Id. ¶ 3). Angela Benware was an Offender Rehabilitation
Coordinator at Clinton during the relevant time. (Id. ¶ 4). Chad Webb is the Deputy Superintendent of Program at Clinton, but
was the Education Supervisor at Clinton at all times relevant to the complaint. (Id. ¶ 5). Mark Wilson and Donald Whitehurst
are correction officers at Clinton, both of whom worked as law library Supervisors during the relevant time period. (Id. ¶¶ 4-7).
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B. Plaintiff's Writ of Habeas Corpus
*2 On February 12, 2021, Plaintiff filed a Writ of Habeas Corpus (the “Writ”) dated January 27, 2021, with the Clinton County
Supreme Court. (Id. ¶ 10). The Writ consisted of Plaintiff's allegations regarding Clinton's handling of the COVID-19 pandemic.
(Id. ¶ 12). The respondent, Bell, answered the Writ, and Plaintiff filed a reply to that answer. (Id. ¶¶ 11, 13). Plaintiff was present
remotely for oral argument on the Writ on March 24, 2021. (Id. ¶ 14). He also corresponded with the court and opposing counsel
while the Writ was pending. (Id. ¶ 15). The Writ was dismissed on July 2, 2021. (Id. ¶ 16).
C. First Amendment Access to Courts
Plaintiff generally alleges Bell, King, McIntosh, Wilson, and Whitehurst interfered with his access to the courts because he
filed the Writ. (Id. ¶ 17). Plaintiff claims McIntosh, Wilson, and Whitehurst tampered with and withheld Plaintiff's incoming
and outgoing legal mail. (Dkt. No. 1, ¶¶ 51, 58, 120). Plaintiff also alleges Bell, McIntosh, Wilson, King, and Whitehurst
implemented a policy that required Plaintiff to disclose the contents of his outgoing mail. (Id. ¶ 56). Plaintiff asserts that, as
a result of the foregoing actions and policies, three Article 78 petitions were dismissed and his Court of Claims action was
not properly filed. (Id. ¶¶ 51, 56-58; Dkt. No. 1-1, at 90, 97-99, 116-18, 133-36, 152, 160, 186, 188; Dkt. No. 1-2, at 4; Dkt.
No. 90-3, ¶ 18).
The three Article 78 proceedings are: Burrell v. Annucci (Albany Cnty. Sup. Ct. Index #10042-21); Burrell v. McCoy (Albany
Cnty. Sup. Ct. Index #782-22); and Burrell v. Rodriguez (Albany Cnty. Sup. Ct. Index #2571-22). (Id. ¶ 19). The Court of Claims
proceeding was captioned Burrell v. State of New York. (Id. ¶ 20).
D. First Amendment Retaliation
Plaintiff alleges he was retaliated against for filing the Writ in two ways. (Id. ¶ 40). First, Plaintiff claims King, Wilson, and
Whitehurst removed him from his position as a paralegal assistant at Clinton's law library. (Id.). Second, Plaintiff claims Benware
improperly conducted Plaintiff's quarterly reviews by refusing to coordinate a rehabilitation plan that was conducive to his
release, by refusing to issue a facility transfer, and by refusing to alter his security classification. (Id.). King, Wilson, Whitehurst,
and Benware declare they were not aware of the Writ before Plaintiff filed this action. (Id. ¶ 41).
On February 18, 2021, King approved a request from non-party Lieutenant Eric Cragle to remove Plaintiff from his position
as a paralegal assistant. (Id. ¶¶ 43-45). Defendants maintain Plaintiff was removed from his position as paralegal assistant due
to security concerns and not because of any lawsuit he filed. (Id. ¶¶ 45, 46, 49). Wilson and Whitehurst affirm they played no
role in removing Plaintiff from his position as a paralegal assistant. (Id. ¶¶ 47, 48).
Quarterly reviews are conducted to see how incarcerated individuals are coping with incarceration, to ensure they are
programming correctly, and to track their “case plan.” (Id. ¶ 51). A quarterly review is not used to coordinate a rehabilitation plan
for an incarcerated individual, nor does it have anything to do with an incarcerated inmate's security classification or transfer to
another facility. (Id. ¶¶ 52, 53). Offender Rehabilitation Coordinators have no ability or authority to approve, deny, or impact
the transfer of an incarcerated individual. (Id. ¶ 54).
E. Fourteenth Amendment Equal Protection
Plaintiff alleges Benware and Webb denied him equal protection, based on his race, by refusing to file Plaintiff's paralegal
certificate with the Training Achievement & Potential Employability Report (“TAPER”), which would have allowed Plaintiff to
receive paralegal wages. (Dkt. No. 1, ¶ 60; Dkt. No. 1-2, at 26). Plaintiff claims Webb placed the same paralegal certificate in the
file of a white prisoner (identified as “Dewie”), who received paralegal wages. (Dkt. No. 1, ¶ 60). Defendants maintain that only
tasks and titles earned as part of Department of Corrections and Community Supervision (“DOCCS”) Vocational Education
or Industry program are entered in TAPER. (Dkt. No. 90-3, ¶ 57). Paralegal certifications obtained through correspondence
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courses, such as Plaintiff's, are not entered in TAPER. (Id. ¶¶ 58, 59). Benware and Webb declare they have never filed an
incarcerated individual's paralegal certification in TAPER. (Id. ¶¶ 60, 61).
III. STANDARD OF REVIEW
*3 Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if all submissions 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
A fact is material if it “might affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see also Jeffreys v.
City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson, 477 U.S. at 248). The movant may meet this burden by showing
that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322; see also Selevan v. N.Y.
Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (explaining that summary judgment is appropriate where the nonmoving party
fails to “ ‘come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on’ an essential
element of a claim” (quoting In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010))).
If the moving party meets this burden, the nonmoving party must “set forth specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 248; see also Celotex, 477 U.S. at 323-24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009).
“When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-
moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace, Inc.
v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still, the nonmoving party “must do more than simply show that there
is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), and cannot rely on “mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary
judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (citing Quarles v. Gen. Motors Corp., 758 F.2d 839,
840 (2d Cir. 1985)). Furthermore, “[m]ere conclusory allegations or denials ... cannot by themselves create a genuine issue of
material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex,
Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
Where the plaintiff proceeds pro se, the Court must read their submissions liberally and interpret them “to raise the strongest
arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994)). However, a pro se party's “ ‘bald assertion,’ completely unsupported by evidence, is not sufficient to
overcome a motion for summary judgment.” Jordan v. New York, 773 F. Supp. 2d 255, 268 (N.D.N.Y. 2010) (citing Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); see also Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011).
IV. STATEMENT OF MATERIAL FACTS
Before turning to the merits, the Court must address Defendants’ contention that many of Plaintiff's factual allegations are not
supported by any admissible evidence and that Plaintiff has therefore failed to raise a genuine issue of material fact with respect
to those allegations. (Dkt. No. 109, at 5-6). Defendants further maintain that while Plaintiff denies most of the statements in
their Rule 56.1 statement, (see Dkt. No. 105, at 3-5), Plaintiff has failed to point to any testimony or documentary evidence
to warrant the denial. (Dkt. No. 109, at 5-6).
Rule 56(c)(1)(A) requires that a “party asserting that a fact ... is genuinely disputed must support the assertion by: (A) citing to
particular parts of materials in the record ...; or (B) showing that the materials cited do not establish the absence or presence of
a genuine dispute.” Fed. R. Civ. P. 56(c)(1)(A). Under Rule 56(e), if a party “fails to properly address another party's assertion
of fact as required by Rule 56(c), the court may,” inter alia, “consider the fact undisputed for purposes of the motion” or “grant
summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is
entitled to it.” Fed. R. Civ. P. 56(e)(2), (3). Similarly, Local Rule 56.1(b) requires that each denial in a response to a statement of
material facts “set forth a specific citation to the record where the factual issue arises,” and provides that “[t]he Court may deem
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admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically
controvert.” (N.D.N.Y. L.R. 56.1(b) (emphasis omitted)).
*4 A court has discretion to deem facts admitted or grant summary judgment in accord with Rule 56(e)(2), (3), and the court's
local rules, but is not required to do so. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (“A nonmoving party's
failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested
and admissible.”); Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (“A district court has broad discretion to
determine whether to overlook a party's failure to comply with local court rules.”). A court “may in its discretion opt to ‘conduct
an assiduous review of the record’ even where one of the parties has failed to file” a Local Rule 56.1 statement. Id.; see also
Advisory Committee Notes to 2010 Amendment to Fed. R. Civ. P. 56 (noting that when a party “fails to properly address another
party's assertion of fact as required by Rule 56(c),” “the court may choose not to consider the fact as undisputed, particularly if
the court knows of record materials that show grounds for genuine dispute,” and that “the court may seek to reassure itself by
some examination of the record before granting summary judgment against a pro se litigant”); Fed. R. Civ. P. 56(c)(3) (noting
that the court “may consider other materials in the record,” beyond the cited materials).
In moving for summary judgment, Defendant expressly notified Plaintiff that:
pursuant to Federal Rule of Civil Procedure Rule 56(e), when a motion for summary judgment is made
and properly supported, you may not simply rely upon your pleadings to oppose said motion, but you
must respond by affidavits or as otherwise provided in that rule, setting forth specific facts showing
that there is a genuine issue of material fact for trial. Any factual assertions in Defendants’ Declarations
will be accepted by the Judge as being true unless you submit affidavits or other documentary evidence
contradicting our assertions.
(Dkt. No. 90, at 1-2). In addition, as required by N.D.N.Y. Local Rule 56.2, Defendants annexed a “Notification of the
Consequences of Failing to Respond to a Summary Judgment Motion” to its motion:
WARNING: If you do not submit a proper response to the defendants’ statement of material facts,
the Court may deem you to have admitted the defendants’ factual statements. If you do not
submit copies of record evidence in support of your denials, the Court may deem defendants’ factual
statements to be true. If you do not submit a proper response memorandum of law, the Court
may deem you to have conceded the defendants’ arguments. If you do not respond to this motion
properly (or at all), summary judgment may be entered against you, meaning that SOME OR ALL
OF YOUR CLAIMS MAY BE DISMISSED.
(Id. at 3). Despite these warnings, Defendants argue Plaintiff does nothing more than reassert the allegations in his complaint,
which is unsworn, without reference to any admissible evidence. (Dkt. No. 109, at 5). Further, while Plaintiff denies several of
Defendants’ statements, he has failed to point to any testimony or documentary evidence to support his denials. (Id. at 6).
However, “as the Second Circuit has made clear [that] ‘special solicitude should be afforded pro se litigants generally, when
confronted with motions for summary judgment,’ ” and because “ ‘the Court retains some discretion to consider the substance
of the plaintiff's arguments, where actually supported by evidentiary submissions,’ ” Hamm v. Hatcher, No. 05-cv-503, 2013
WL 71770, at *6 (S.D.N.Y. Jan. 7, 2013) (internal citations omitted) (first quoting Graham v. Lewinski, 848 F.2d 342, 344 (2d
Cir. 1988); and then quoting Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009)), the Court has opted to review
the entire record in this case. However, the Court's review has revealed that Plaintiff's opposition contains very little in the way
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of admissible evidence. (See generally Dkt. Nos. 105, 105-1). Moreover, since Plaintiff's complaint is not verified, it may not
be properly treated as an affidavit in opposition to Defendants’ motion. (See Dkt. No. 1). 3
*5 Nonetheless, while mindful of Plaintiff's status as a pro se litigant, because Plaintiff received “adequate notice that he
needed to submit affidavits or other admissible evidence to create a genuine factual dispute on his claims,” the Court accepts
Defendants’ version of the facts where Plaintiff has not properly supported his factual allegations. See Salahuddin v. Goord,
467 F.3d 263, 278 (2d Cir. 2006) (accepting the defendant's “version of events” where the pro se plaintiff “received adequate
notice that he needed to submit affidavits or other admissible evidence to create a genuine factual dispute on his claims,” but
pointed “only to his unsworn complaint to dispute [the defendant's] version of events”).
V. DISCUSSION
A. Personal Involvement
It is well-settled that, to establish a defendant's individual liability in a suit brought under Section 1983, a plaintiff must show “the
defendant's personal involvement in the alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138
(2d Cir. 2013) (citations omitted). A plaintiff must “allege a tangible connection between the acts of a defendant and the injuries
suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). There is “no special rule for supervisory liability,” and “a plaintiff
must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the
Constitution.’ ” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
The Second Circuit has explained that “[t]he factors necessary to establish a [§ 1983] violation will vary with the constitutional
provision at issue because the elements of different constitutional violations vary,” and “[t]he violation must be established
against the supervisory official directly.” Id. (second alteration in original) (internal quotations and citations omitted).
Accordingly, the Court will address Defendants’ arguments related to their lack of personal involvement below. (Dkt. No. No.
90-1, at 15-18).
B. Denial of Access to Courts
The First Amendment right to petition the government, which applies to the states through the Fourteenth Amendment, “extends
to all departments of the Government, including the Courts.” Friedman v. Bloomberg L.P., 884 F.3d 83, 90 (2d Cir. 2017) (citation
omitted). “A plaintiff's constitutional right of access to the courts is violated where government officials obstruct legitimate
efforts to seek judicial redress.” Id. (citation and internal quotation marks omitted).
Circuit Courts of Appeals have “recognized two variants of right-of-access claims”: (1) “forward-looking suits,” in which
plaintiffs allege that “ ‘systemic official action’ frustrated their ability to file a suit,” and (2) “backward-looking” claims
“covering suits that ‘cannot now be tried (or tried with all material evidence), no matter what official action may be in the
future.’ ” Sousa v. Marquez, 702 F.3d 124, 127–28 (2d Cir. 2012) (citation omitted). A plaintiff may have a backward-looking
right-of-access claim, for example, where the official action “caused the loss or inadequate settlement of a meritorious case.”
Id. at 128. However, the Second Circuit has not recognized the viability of backward-looking right-of-access claims. See id.
(noting that the “viability of backward-looking right-of-access claims is far from clear in this Circuit” and declining to decide
the issue); Kern v. Contento, No. 21-cv-1672, 2022 WL 1112767, at *3 (2d Cir. Apr. 14, 2022) (summary order) (noting that
Sousa “declined to decide whether to follow other circuits in recognizing a backward-looking claim”).
*6 Here, Plaintiff claims that McIntosh, Wilson, and Whitehurst tampered with and withheld Plaintiff's incoming and outgoing
legal mail. (Dkt. No. 1, ¶¶ 51, 58, 120). Plaintiff also alleges that Bell, McIntosh, Wilson, King, and Whitehurst implemented a
policy that required Plaintiff to disclose the contents of his outgoing mail. (Id. ¶ 56). Further, Wilson and Whitehurst allegedly
informed Plaintiff that they would “not mail[ ] out [anything] that has me or my boys listed as a Defendant.” Id. Plaintiff asserts
that, as a result of Defendants’ actions and policies, Plaintiff's Article 78 petitions were dismissed and his Court of Claims action
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was not properly filed. (See id. ¶¶ 51, 56-58; see also Dkt. No. 1-1, at 90, 97-99, 116-118, 133-136, 152, 160, 186, 188; Dkt.
No. 1-2, at 4). Thus, Plaintiff brings a backward-looking right-of-access claim.
Although the availability of a backward-looking access claim remains uncertain in this Circuit, Sousa v. Marquez, 702 F.3d at
28, the existing case law suggests four elements:
First, the plaintiff must identify a nonfrivolous, arguable underlying claim. Second, the plaintiff must
establish that the defendant took or was responsible for actions that hindered a plaintiff's efforts to
pursue a legal claim. Third, the plaintiff must show that the defendant's alleged conduct was deliberate
and malicious. Fourth, the plaintiff must demonstrate that the defendant's actions resulted in an actual
injury to the plaintiff.
Jean-Laurent v. Lawrence, No. 12-CV-1502, 2015 WL 1208318, at *4 (S.D.N.Y. Mar. 17, 2015) (internal citations and
quotations omitted).
Defendants argue Bell, McIntosh, Wilson, King, and Whitehurst are entitled to summary judgment. (Dkt. No. 90-1, at 15-16,
18-21). The Court agrees.
First, there is no dispute that Plaintiff commenced all three Article 78 proceedings, Burrell v. Annucci, Burrell v. McCoy, and
Burrell v. Rodriguez, and the Court of Claims proceeding captioned Burrell v. State of New York, after the Writ had been
dismissed. (Dkt. No. 90-3, ¶ 21; see Dkt. No. 105-1, at 9). In the Article 78 actions, Plaintiff received a signed Order to Show
Cause from the assigned Justice of the Supreme Court with directions on how to serve the respondents and the Office of the
Attorney General. (See Dkt. Nos. 90-8, 90-9, 90-10). Notwithstanding Plaintiff's claim that he “complied with the Court Order
in each action,” Dkt. No. 105-1, at 9, the record demonstrates the three Article 78 cases were dismissed as Plaintiff failed to
properly serve the relevant Order to Show Cause. (See Dkt. Nos. 90-12, 90-13, 90-14). In fact, in the Decisions and Orders
issued in Burrell v. McCoy and Burrell v. Rodriguez, the courts noted that while Plaintiff served the respondents with papers,
Plaintiff served the wrong papers, meaning the “unsigned” Order to Show Cause as opposed to the “signed” Order. (Dkt. No.
90-1, at 10). Thus, the cases were dismissed due to Plaintiff's errors and not due to interference from Defendants. 4 Plaintiff's
ability to serve the correct papers was not impeded by Defendants or any “policy” despite Plaintiff's conclusory allegations. See
Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (“Conclusory allegations, conjecture and speculation ... are insufficient
to create a genuine issue of fact.”).
Indeed, Bell, King, McIntosh, Whitehurst, and Wilson declare they never prevented Plaintiff from commencing suit in any
court or from filing documents relative to any legal proceeding. (Dkt. No. 90-3, ¶ 25). Defendants maintain there was no mail
policy in place at Clinton that prevented Plaintiff from filing suit in any court and/or from filing documents relative to any
legal proceeding. (Id. ¶ 26). Bell, King, McIntosh, Whitehurst, and Wilson declare they played no role in receiving, sending,
or otherwise processing Plaintiff's mail. (Id. ¶¶ 27, 29, 31, 33, 35). They never authorized anyone to open, inspect, or read any
privileged correspondence sent by Plaintiff nor was Plaintiff required to disclose the contents of his outgoing mail and he was
not required to send mail only from Clinton's law library. (Id. ¶¶ 28, 30, 32, 34, 36).
*7 Similarly, Plaintiff's attempt at filing the Court of Claims action was not impeded by Defendants, despite Plaintiff's
conclusory allegations. The Court of Claims received Plaintiff's filing in Burrell v. State of New York, but it was returned because
Plaintiff failed to pay the filing fee or ask for a reduction of that fee. (Dkt. No. 90-3, ¶ 24). Other than sheer speculation and
conjecture, Plaintiff provides no evidence to create a genuine issue of material fact as to the second element, “whether defendant
took or was responsible for actions that hindered a plaintiff's efforts to pursue a legal claim.” Jean-Laurent, 2015 WL 1208318,
at *4.
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As to the third element, “[d]eliberate and malicious interference [with access to the courts] is established by a defendant's mental
state—specifically, whether he or she had intended to hinder a plaintiff's ability to obtain a remedy in a court of law.” Rodriguez
v. Diaz, No. 05 CIV. 1831, 2011 WL 3427147, at *3 (S.D.N.Y. Aug. 3, 2011), aff'd, 505 F. App'x 26 (2d Cir. 2012) (citations
omitted). Again, Plaintiff has presented no admissible evidence sufficient to create a genuine issue of material that Defendants
acted deliberately or maliciously to impede his access to the courts. (See Dkt. No. 90-1, at 19).
Additionally, Plaintiff's general contention that his incoming and outgoing legal mail was impeded by Defendants is refuted by
his own filings and correspondence in the other cases he has filed in both federal and state court. While not dispositive, during
the time Plaintiff claims Bell, King, McIntosh, Whitehurst, and Wilson were interfering with his access to courts, Plaintiff
commenced several actions in the Northern District of New York. (Dkt. No. 90-3, ¶ 37). 5 He also filed a claim in Albany
County Supreme Court captioned Burrell v. Annucci (Albany Cnty. Sup. Ct. Index #788-21), and opposed the motion to dismiss
filed in that action. (Id. ¶¶ 38, 39).
In sum, Plaintiff has failed to come forward with any evidence from which a reasonable jury could conclude Bell, McIntosh,
Wilson, King, and Whitehurst took action that frustrated Plaintiff's efforts to pursue his legal claims. Therefore, Bell, McIntosh,
Wilson, King, and Whitehurst are entitled to summary judgment on this claim and Plaintiff's access to the court claim is
dismissed.
C. Retaliation
To establish a First Amendment retaliation claim, the plaintiff must demonstrate: “(1) that the speech or conduct at issue was
protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between
the protected speech and the adverse action.” Brandon v. Kinter, 938 F.3d 21, 40 (2d Cir. 2019) (quoting Gill v. Pidlypchak, 389
F.3d 379, 380 (2d Cir. 2004)). In the prison context, “adverse action” is conduct “that would deter a similarly situated individual
of ordinary firmness from exercising ... constitutional rights.” Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003). This inquiry
must be “tailored to the different circumstances in which retaliation claims arise,” bearing in mind that “[p]risoners may be
required to tolerate more ... than average citizens, before a [retaliatory] action taken against them is considered adverse.” Dawes
v. Walker, 239 F.3d 489, 493 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
*8 “Once the plaintiff carries his initial burden, ‘the defendants must show by a preponderance of the evidence that they would
have disciplined the plaintiff even in the absence of the protected conduct.’ ” Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir.
1998) (quoting Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (internal quotation marks omitted)). 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,” prisoners’ claims of retaliation are examined with “skepticism and particular care.” Colon
v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983), overruled on other
grounds by Swierkiewicz, 534 U.S. 506).
1. Law Library Position
Plaintiff claims that Wilson, Whitehurst, King, and Lt. Sorosa removed him from his position in the law library after reading
and becoming aware of his filing of the Writ. (Dkt. No. 1, ¶¶ 26, 77).
Defendants do not challenge whether Plaintiff engaged in protected conduct or speech. (Dkt. No. 90-1, at 22-24). Indeed, it is
well settled that filing a lawsuit is constitutionally protected conduct. See Johnson v. Eggersdorf, 8 F. App'x 140, 144 (2d Cir.
2001); see also Wheeler v. Pataki, No. 9:07-CV-0892 (TJM/GHL), 2009 WL 674152, at *9 (N.D.N.Y. Mar. 11, 2009) (finding
that the plaintiff engaged in protected conduct by filing a state habeas corpus action). Nor do Defendants appear to challenge
whether the alleged conduct at issue constituted an adverse action. (Dkt. No. 90-1, at 22-24). See Henderson v. Vanderwerff,
No. 9:13-CV-1537 (MAD/CFH), 2016 WL 660921, at *5 (N.D.N.Y. Feb. 18, 2016) (finding that the plaintiff plausibly alleged
that the defendant retaliated against him when he removed the plaintiff from his law library job).
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Defendants do, however, take aim at the third element and argue there is no causal connection between the protected speech
and the alleged adverse actions. (Dkt. No. 90-1, at 22-24). Wilson and Whitehurst also seek summary judgment for lack of
personal involvement. (Id. at 17).
To establish a causal connection between protected activities and the adverse action, the court may consider a number of factors,
including “any statements made by the defendant concerning his motivation,” and “the temporal proximity between the protected
activity and the defendant's adverse action.” Hendriks v. Delutis, No. 9:20-CV-1035 (MAD/ML), 2023 WL 4740173, at *3
(N.D.N.Y. July 24, 2023) (citations omitted). But the Second Circuit has “repeatedly held that temporal proximity alone is
insufficient for a prisoner's retaliation claim to survive summary judgment.” Morrow v. Bauersfeld, No. 21-2928-CV, 2022 WL
17097590, at *2 (2d Cir. Nov. 22, 2022) (collecting cases); see also Williams v. King, 763 F. App'x 36, 38-39 (2d Cir. 2019)
(“The only evidence demonstrating a retaliatory motive is temporal proximity which, alone, is insufficient to defeat summary
judgment.”); Washington v. Afify, 681 F. App'x 43, 46 (2d Cir. 2017).
a. Lt. Sorosa
Although Plaintiff's First Amendment retaliation claim against Lt. Sorosa survived the Court's initial review, (Dkt. No. 6, at
28), the Summons for Lt. Sorosa was returned unexecuted as DOCCS was unable to identify an employee with that name. (See
Dkt. Nos. 15, 15-1). On July 28, 2023, Plaintiff filed a letter indicating the “correct” defendant is “Lt. Cragle” and not “Lt.
Sorosa.” (Dkt. No. 31). By text order entered August 3, 2023, Plaintiff was advised that if he wished to add a new defendant,
he would need to move to amend his complaint. (Dkt. No. 32). Plaintiff was reminded of his obligation to move to amend if
he sought to add a new party by a second text order on January 11, 2024. (Dkt. No. 52). However, Plaintiff never moved to
amend his complaint. (See generally Docket Report).
*9 Given the forgoing, Defendants request that Lt. Sorosa be removed as a party to this action and any claims asserted against
Lt. Sorosa, should they exist, be dismissed. (Dkt. No. 90-1, at 6 n.2). In his opposition submission, Plaintiff explains he named Lt.
Sorosa as a defendant because Whitehurst “lied” and stated “Lt. Sorosa” authorized his removal. (Dkt. No. 105-1, at 6). Plaintiff
does not substantively oppose Defendants’ request. (See generally Dkt. Nos. 105, 105-1). Accordingly, the Court dismisses the
First Amendment claim asserted against Lt. Sorosa without prejudice. (See Fed. R. Civ. P. 4(m); N.D.N.Y. L.R. 4.1(b)).
b. Whitehurst and Wilson
Plaintiff alleges that on or about February 17, 2021, Whitehurst and Wilson removed him from his position as a paralegal
assistant in retaliation for filing the Writ on February 12, 2021. (Dkt. No. 1, ¶¶ 31-34, 77). Defendants argue Whitehurst and
Wilson are entitled to summary judgment for lack of personal involvement. (Dkt. No. 90-1, at 17). The Court agrees.
As an initial matter, Whitehurst and Wilson affirm they were not aware of the Writ before Plaintiff filed this suit. (Dkt. Nos.
90-31, ¶ 24, 90-32, ¶ 24). Whitehurst and Wilson declare they did not play any role in Plaintiff's removal from his position as a
paralegal assistant. (Dkt. Nos. 90-31, ¶ 9, 90-32, ¶-9). As law library Supervisors, Whitehurst and Wilson manage the day-to-
day operations of the law library. (Dkt. Nos. 90-31, ¶ 5, 90-32, ¶ 5). They supervise incarcerated workers, maintain the security
of all law library materials, ensure that loaned and returned materials are inspected to make sure they are contraband-free, and
initiate disciplinary proceedings/seek restitution when incarcerated individuals damage or destroy law library materials. (Dkt.
Nos. 90-31, ¶ 5, 90-32, ¶ 5).
As discussed further below, Defendants’ submissions demonstrate that on February 18, 2021, Cragle, who is not a party to
this action, requested that Plaintiff be removed from his paralegal assistant position because Plaintiff had been improperly
exchanging legal material with other incarcerated individuals. (Dkt. No. 90-3, ¶¶ 43, 45). On February 18, 2021, King, who was
then then Deputy Superintendent for Programs, approved Cragle's request and Plaintiff was removed as a paralegal assistant.
(Id. ¶ 46). Cragle and King both declare Whitehurst and Wilson played no role in the decision to remove Plaintiff from his
position as a paralegal assistant. (Dkt. Nos. 90-25, ¶ 19, 90-28, ¶ 13).
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In opposition, although Plaintiff maintains Whitehurst and Wilson were aware of the Writ because, among other things, Plaintiff
drafted the habeas petition using a law library computer, (see Dkt. No. 105, ¶ 83) and claims Cragle and King “both lied” in
their sworn declarations, (see Dkt. No. 105-1, at 20), Plaintiff has failed to show that Whitehurst and Wilson had the requisite
personal involvement in his removal. See Kerzer, 156 F.3d at 400 (“Conclusory allegations, conjecture and speculation ... are
insufficient to create a genuine issue of fact.”). Therefore, Whitehurst and Wilson are entitled to summary judgment on this
claim. See Tangreti, 983 F.3d at 618. Plaintiff's retaliation claim is dismissed against Whitehurst and Wilson.
c. King
On the other hand, as to King, Defendants have not met their burden. (Dkt. No. 90-1, at 22-24). For her part, King declares that
on February 18, 2021, she received and approved a request from non-party Cragle to remove Plaintiff from his position as a
paralegal assistant due to security concerns. (Dkt. No. 90-28, ¶ 10). King declares she was not aware of Plaintiff's Writ when
she approved his removal as a paralegal assistant and affirms her decision was in no way motivated by Plaintiff's Writ. (Id. ¶
12). Rather, her decision was premised solely on Cragle's assessment, (id.), who was responsible for ensuring the safety of the
law library's staff and the incarcerated individuals working at and utilizing the law library. (Dkt. No. 90-25, ¶ 7).
*10 In turn, Cragle declares that on or about February 18, 2021, “it came to [his] attention that [ ] Plaintiff had been issued
a misbehavior report [for] entering a company without permission and for passing unauthorized and unrecovered items with
another [incarcerated individual].” (Id. ¶ 9). 6 Cragle states that Plaintiff “was not permitted use his position move freely around
the facility to exchange items with other [incarcerated individuals].” (Id. ¶ 12). According to Cragle, “The issuance of the ticket
should have resulted in Plaintiff's immediate removal from his position.” (Id. ¶ 12). He also states, “Barring that he should
have been removed from his position after he was found guilty of the charges.” (Id.). Based on the foregoing information,
Cragle “determined Plaintiff's continued employment as a paralegal assistant was improper and presented a security issue.” (Id.
¶ 13). As such, on February 18, 2021, Cragle made a request to King “to remove Plaintiff from his position as a paralegal
assistant.” (Id. ¶ 14). King granted this request and Plaintiff was removed from the position on February 18, 2021. (Id. ¶ 15).
In short, Cragle affirms he “requested that Plaintiff be removed from his position as a paralegal assistant solely because of the
security threat he presented at the time.” (Id. ¶ 18).
Based on the foregoing, Defendants maintain King is entitled to summary judgment because temporal proximity alone is
insufficient to establish liability at summary judgment and, in any event, the evidence establishes Plaintiff was removed as a
paralegal assistant due to security concerns. (See Dkt. No. 90-1, at 22-23). The Court does not find summary judgment on this
claim to be warranted.
Initially, Plaintiff does not rely on temporal proximity alone. Defendants maintain Cragle requested that Plaintiff be removed
from his position because Plaintiff had been improperly exchanging legal material with other incarcerated individuals, (Dkt. No.
90-3, ¶ 45), but Plaintiff was found not guilty of the “unauthorized exchange,” (Dkt. No. 90-27, at 1). Williams v. Hill, No. 6:22-
CV-06093, 2025 WL 2419333, at *6 (W.D.N.Y. Aug. 21, 2025) (“[A] fact-finder may infer an improper or retaliatory motive
in the adverse action from facts that demonstrate ... vindication at a hearing on the matter[.]”). Moreover, Cragle declares the
“issuance of the ticket [on February 1, 2021,] should have resulted in Plaintiff's immediate removal from his position[,]” (Dkt.
Nos. 90-25, ¶ 7), and yet Plaintiff was not removed from his paralegal assistant position until February 18, 2021, well after
Plaintiff was found “not guilty” of the unauthorized exchange charge on February 5, 2021. (Dkt. Nos. 90-27, at 1, 105, ¶¶ 79,
82). This timeline buttresses Plaintiff's showing of a causal connection.
Further, in his March 18, 2021, letter to King, Plaintiff stated that after he was removed from his law library position, he
requested a copy of his “removal documents” but was informed by Benware there were no such documents. (Dkt. No. 1-1, at
33). 7 Additionally, Plaintiff explained in this letter, “About 10 days or so after the incident, you (DSP Ms. King) conducted
a tour of A-Block where I reside. I asked you (Ms. King) about the incident and why you removed me from my Law Library
program, but you (Ms. King) stated that you had no idea about my removal and that I should write to you about the problem.” Id.
By Memorandum dated March 30, 2021, King responded to Plaintiff's letter and informed Plaintiff that his “security removal
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from the Law Library was reviewed and approved by me. The facility is not obligated to disclose the reason for your removal,
as it could jeopardize the safety and security of the facility.” (Dkt. No. 1-1, at 37).
*11 Construing all of the facts in the light most favorable to Plaintiff, the Court cannot conclude that Plaintiff has failed to
raise a genuine issue of material fact as to whether there is a causal connection between his protected activity and his removal
from the law library position. 8 Accordingly, Defendants’ motion for summary judgment on Plaintiff's retaliation claim as to
King is denied.
2. Quarterly Review
Plaintiff alleges Benware retaliated against him and refused to coordinate a rehabilitation plan that was conducive to Plaintiff's
release, refused to issue a facility transfer, and refused to assist Plaintiff with his security classification appeal. (Dkt. No. 1, ¶ 74;
Dkt. No. 1-2, at 68; see also Dkt. Nos. 105, 105-1). This retaliation claim lacks merit and is belied by Defendants’ admissible
evidence.
To begin, Benware submitted a sworn declaration stating she had no knowledge of the Writ until Plaintiff commenced this
action. (Dkt. No. 90-23, ¶¶ 39, 40). Benware further declares she does not know the nature of Plaintiff's allegations in the
Writ. (Id.). Plaintiff has not produced any evidence, admissible or otherwise, to refute Benware's sworn statements. See Henson
v. Gagnon, No. 9:13-CV-0590 (GTS/TWD), 2015 WL 9809874, at *12-13 (N.D.N.Y. Dec. 10, 2015) (dismissing the inmate
plaintiff's First Amendment retaliation claim for failure to establish causal connection where the corrections officer defendant
submitted a sworn statement that he had no knowledge of the plaintiff's grievance against him at the time of the alleged adverse
action, and the plaintiff offered no evidence to refute the defendant's sworn statement), report and recommendation adopted,
2016 WL 204494 (N.D.N.Y. Jan. 15, 2016); Chapple v. Keane, 903 F. Supp. 583, 585 (S.D.N.Y. 1995) (dismissing retaliation
claim where the officer, who allegedly took adverse action, declared under oath that he had no knowledge of the plaintiff's prior
complaints); Perez v. Keysor, No. 9:10-CV-0518 (LEK/CFH), 2013 WL 5493932, at *15 (N.D.N.Y. Sept. 30, 2013) (finding no
causal connection where the plaintiff's “conclusory and speculative allegations” that the defendants knew of his prior grievance
were contrary to the defendants’ declarations stating that they had no knowledge of such grievance); Shaheen v. Filion, No.
9:04-CV-625 (FJS/DRH), 2006 WL 2792739, at *3 (N.D.N.Y. Sept. 17, 2006) (dismissing retaliation claim where the inmate
plaintiff “provide[d] no evidence to demonstrate that any defendant had any knowledge of his complaints ... prior to the [adverse
action],” and to which the defendants “provided a declaration stating that he or she was unaware of any of [the plaintiff's]
writings that criticized prison officials and conditions”).
Moreover, the record evidence demonstrates quarterly reviews are normally conducted every three months to see how an
incarcerated individual is coping with incarceration, to ensure that an incarcerated individual is programing correctly, and to
track an incarcerated individual's case plan. (Dkt. No. 90-3, ¶¶ 50, 51). Contrary to Plaintiff's assertions, a quarterly review is
not used to coordinate a rehabilitation plan for an incarcerated individual, nor does it have anything to do with an incarcerated
individual's security classification or transfer to another facility. (Id. ¶¶ 52). Moreover, Offender Rehabilitation Coordinators,
such as Benware, have no ability or authority to approve, deny or in any way impact Plaintiff's, or any other incarcerated
individual's, transfer to another facility. (Id. ¶ 54). Again, at summary judgment, “[c]onclusory allegations, conjecture and
speculation ... are insufficient to create a genuine issue of fact.” Kerzer, 156 F.3d at 400.
*12 To the extent Plaintiff contends the “adverse action was attempting to place plaintiff in protective custody at quarterly
review, and refusing to submit transfer[,]” (Dkt. No. 105-1, at 20), such claim also fails because Plaintiff has not proffered
evidence establishing the causation element. Benware declares that at the end of the quarterly review in February, she asked
Plaintiff a standard set of questions to confirm that he did not have any safety concerns. (Dkt. No. 90-23, ¶¶ 32, 33). Plaintiff
responded that he did have concerns with security. (Id. ¶ 33). Benware explains she understood Plaintiff had a concern about
his safety, and she was obligated to notify security. (Id. ¶ 34). Plaintiff then denied his prior statements, stating, “I don't have
any safety concerns. I just want out of this jail.” (Id. ¶ 35). Moreover, after the review was completed, Benware did relay to
Central Office that Plaintiff had expressed a desire to have an “area of preference transfer.” (Id. ¶ 37).
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In short, Benware declares she never denied Plaintiff anything that he was entitled to that was within the scope of her job
description. (Id. ¶ 38). Further, she avers that she has never taken any actions against or regarding Plaintiff because he filed a
habeas corpus proceeding or any other legal proceeding. (Id. ¶ 41). Accordingly, as Plaintiff has failed to demonstrate a prima
facie case for retaliation against Benware, Defendants’ motion is granted and Plaintiff's retaliation claim against Benware is
dismissed.
D. Equal Protection
The Fourteenth Amendment requires that the government treat all similarly situated people alike. City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Specifically, the Equal Protection Clause “bars the government from selective
adverse treatment of individuals compared with other similarly situated individuals if ‘such selective treatment was based on
impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious
or bad faith intent to injure a person.’ ” Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (quoting LeClair v. Saunders, 627
F.2d 606, 609-10 (2d Cir. 1980)). “To prove a violation of the Equal Protection Clause ... a plaintiff must demonstrate that he
was treated differently than others similarly situated as a result of intentional or purposeful discrimination.” Phillips v. Girdich,
408 F.3d 124, 129 (2d Cir. 2005).
In this case, Plaintiff claims Benware and Webb denied him equal protection by refusing to file Plaintiff's paralegal certificate
in TAPER, which would have allowed Plaintiff to receive paralegal wages, despite Webb filing the same paralegal certificate
in TAPER for an incarcerated individual (“Dewie”), who is supposedly white and received paralegal wages. (Dkt. No. 1, ¶
60). Defendants maintain Benware and Webb are entitled to summary judgment. (Dkt. Nos. 90-1, at 24-25, 109, at 10). The
Court agrees.
Here, the record is devoid of admissible evidence to support Plaintiff's claim that Benware and Webb acted intentionally
or purposefully in their alleged refusal to file Plaintiff's paralegal certificate in TAPER. As an initial matter, Benware and
Webb have proffered admissible evidence—declarations signed under penalty of perjury—explaining TAPER “is a vocational
reporting system that reflects an [incarcerated individual's] vocational accomplishments and indicates an [incarcerated
individual's] credited tasks and job titles, apprenticeship participation, high school equivalence diploma, and any industry job
titles earned while incarcerated.” (Dkt. Nos. 90-23, ¶ 8, 90-30, ¶ 11). “Only tasks and titles earned as part of DOCCS Vocational
Education or Industry program are entered in TAPER.” (Dkt. Nos. 90-23, ¶ 9, 90-30, ¶ 12). “Paralegal certificates obtained
from correspondence schools, such as Plaintiff's are never entered into TAPER.” (Dkt. Nos. 90-23, ¶ 10, 90-30, ¶ 12). 9
*13 Benware and Webb declare they do not know “Dewie” and they never filed a paralegal certificate for any incarcerated
individual in TAPER. (Dkt. No. 90-23, ¶¶ 13-14, 90-30, ¶¶ 14-15). Moreover, Benware and Webb declare they “did not refuse to
file Plaintiff's paralegal certificate because he is black.” (Dkt. No. 90-23, ¶ 14, 90-30, ¶ 15). Insofar as Plaintiff takes issues with
the wages he received, neither Benware or Webb are responsible for reviewing or setting an incarcerated individual's wages,
which are set by the Program Committee. (Dkt. No. 90-23, ¶¶ 15-17, 90-30, ¶¶ 16-18).
To support his claim that he was treated differently because he is Black, in opposition to Defendants’ motion, Plaintiff states
he asked Dewie “why [Plaintiff's] certificate was not transmitted into his file. Dewie explained it was because he was White
& Plaintiff was Black, and that's how Clinton works.” (Dkt. No. 105, ¶ 87). But as Defendants point out in reply, Plaintiff's
opposition submission presents nothing more than hearsay statements from an incarcerated individual who has never been
deposed or produced a sworn statement. (Dkt. No. 109, at 10); see Payne v. Cornell Univ., No. 18-CV-1442 (GTS/ML), 2021
WL 39684, at *14 (N.D.N.Y. Jan. 5, 2021) (Statements which “contain[ ] hearsay, conclusory assertions not based on personal
knowledge, and statements contradicted by [plaintiff's] own previous deposition testimony” may be disregarded, in the discretion
of the judge reviewing a summary judgment motion.), aff'd, No. 21-109-CV, 2022 WL 453441, at *2 (2d Cir. Feb. 15, 2022).
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Here, the record demonstrates an incarcerated individual's certificate from a correspondence course, regardless of their race, is
never entered into TAPER and Plaintiff offers no admissible proof to the contrary. 10 Plaintiff has failed to adduce sufficient
evidence for a reasonable trier of fact to find his right to equal protection was violated. See, e.g., Phillips v. Girdich, No. 9:03-
CV-1019 (DNH/DRH), 2007 WL 3046744, at *7 (N.D.N.Y. Oct. 17, 2007) (granting summary judgment for defendants where
plaintiff-inmate “fail[ed] to offer any evidence beyond his self-serving assertions” that white inmates received more lenient
treatment than minority inmates); see also Reynolds v. Barrett, 685 F.3d 193, 201 (2d Cir. 2012) (“ ‘[A] plaintiff pursuing a
claimed ... denial of equal protection under § 1983 must show that the discrimination was intentional.’ ”) (quoting Patterson
v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004)). Accordingly, Benware and Webb are entitled to summary judgment and
Plaintiff's equal protection claim is dismissed.
VI. CONCLUSION
For these reasons, it is hereby
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 90) is GRANTED in part and DENIED in part; and
it is further
ORDERED that Plaintiff's First Amendment access to the court claim against Bell, McIntosh, King, Wilson, and Whitehurst
is DISMISSED with prejudice; and it is further
ORDERED that Plaintiff's First Amendment retaliation claim against Wilson, Whitehurst, and Benware is DISMISSED with
prejudice; and it is further
ORDERED that Plaintiff's First Amendment retaliation claim against Sorosa is DISMISSED without prejudice; and it is
further
ORDERED that Plaintiff's Fourteenth Amendment equal protection claim against Benware and Webb is DISMISSED with
prejudice; and it is further
*14 ORDERED that the Clerk TERMINATE defendants Bell, McIntosh, Wilson, Whitehurst, Benware, Webb, and Sorosa
on the Docket; and it is further
ORDERED that Plaintiff's First Amendment retaliation claim against King shall proceed to trial; and it is further
ORDERED that the Clerk of the Court serve a copy of this Memorandum-Decision and Order upon the parties to this action,
along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders,
557 F.3d 76 (2d Cir. 2009) (per curiam).
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2624406
Footnotes
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1 To date, Lt. Sorosa has not appeared in this action. (See Docket Report). For reasons discussed below, the Clerk is
directed to terminate Lt. Sorosa from the Docket.
2 The facts are drawn from Defendants’ statements of material facts, (Dkt No. 90-3), and Plaintiff's response, (Dkt. No.
105), to the extent the facts are well-supported by pinpoint citations to the record, as well as the exhibits attached thereto
and cited therein. The facts are construed in the light most favorable to Plaintiff as the non-moving party. Gilles v.
Repicky, 511 F.3d 239, 243 (2d Cir. 2007). Citations to court documents utilize the pagination generated by CM/ECF.
Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in
spelling, punctuation, and grammar have not been corrected.
3 Cf. McAllister v. Call, No. 9:10-CV-610 (FJS/CFH), 2014 WL 5475293, at *3 (N.D.N.Y. Oct. 29, 2014) (finding
allegations in plaintiff's verified complaint sufficient to controvert facts in statement of material facts on motion for
summary judgment); see Biller v. Excellus Health Plan, Inc., No. 14-CV-0043, 2015 WL 5316129, at *1 (N.D.N.Y.
Sept. 11, 2015) (“[A] plaintiff may not use her unverified pleading to support a factual assertion in her motion for
summary judgment.”); see also Continental Ins. Co. v. Atl. Cas. Ins. Co., No. 07-CV-3635, 2009 WL 1564144, at *1
n.1 (S.D.N.Y. June 4, 2009) (“On a motion for summary judgment, however, allegations in an unverified complaint
cannot be considered as evidence.”); Thomas v. Jacobs, No. 19-CV-6554 (CS), 2025 WL 662899, at *1 (S.D.N.Y. Feb.
28, 2025) (same).
4 Insofar as Plaintiff maintains “he has no ability to sign[ ] an Order to Show, (see Dkt. No. 105, ¶ 77), Plaintiff appears
to misunderstand that he was directed to file the signed Orders to Show Cause executed by the assigned Justice of the
Supreme Court in each matter.
5 See Burrell v. Mason et al., 21-cv-01165, ECF No. 1 (N.D.N.Y. 2021); Burrell v. Durkin et al., 22-cv-00102, ECF No.
1 (N.D.N.Y. 2022); Burrell v. Central New York Psychiatric Center, et al., 22-cv-00344, ECF No. 1 (N.D.N.Y. 2022).
6 A copy of the misbehavior report is attached as Exhibit A to Cragle's declaration. (Dkt. No. 90-25, ¶ 9). The misbehavior
report was issued on February 1, 2021, by non-party Martin, a corrections officer, charging Plaintiff with violating Rules
113.15 (unauthorized exchange), 107.10 (interference with employee), 109.10 (out of place), and 109.12 (movement
regulation violation). (Dkt. No. 90-26, 1). On February 5, 2021, Plaintiff was found not guilty of the unauthorized
exchange charge and guilty of the other three charges. (Dkt. No. 90-2, 1).
7 Plaintiff also submitted a copy of the IGRC's response to grievance CL-0206-21 concerning his law library position.
(Dkt. No. 1-1, at 39 (“The IGRC representatives agree with the grievant that he should be placed back in his program.
During the hearing the grievant presented evidence that he was removed without cause, ie: dismissed MBRs, prior
grievances with negative comments from officers named in this grievance, and a lack of documentation for his removal
that should be in his guidance folder, as per Dir. #4803, XI, B., 2 and 3.”)). The Court takes judicial notice that
DOCCS Directive #4803, titled “Incarcerated Program Placement” provides, in relevant part, (“The Program Committee
Chairperson shall ... [r]eceive, review, and act upon all program assignment and change requests submitted by staff
persons and individuals, document the reasons for such requests, and maintain a file record of requests, related
documentation, and action taken in the incarcerated individual's Guidance folder.”). See https://doccs.ny.gov/system/
files/documents/2024/12/4803.pdf (last visited Sept. 10, 2025).
8 Because the Court concludes there remain genuine issues of material fact underlying Plaintiff's retaliation claim against
King, the Court cannot determine as a matter of law whether King is entitled to qualified immunity on this claim.
Therefore, Defendants’ motion is denied on this issue. (Dkt. No. 90-1, at 25-26).
9 Even assuming arguendo, Plaintiff's paralegal certification should have been entered into TAPER, the undisputed record
evidence demonstrates Benware, as an Offender Rehabilitation Coordinator, is not responsible for receiving incarcerated
individuals’ certificates or entering them in TAPER. (Dkt. No. 90-23, ¶ 11). Benware declares she has never filed any
vocational or certificate information in TAPER, and it was not her responsibility to do so. (Id. ¶ 12). Plaintiff has not
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responded to this argument and fails to raise a genuine issue of material fact as to Benware's personal involvement.
See Tangreti, 983 F.3d at 618. Thus, Benware is also entitled to summary judgment for lack of personal involvement.
(Dkt. No. 90-1, at 17-18).
10 Insofar as Plaintiff contends he raised a genuine issue of material fact based on his deposition testimony, such testimony
is not part of the record. (See generally Dkt. No. 105).
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51 F.3d 275
Unpublished Disposition
NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in
the Federal Reporter. Use FI CTA7 Rule 53 for rules regarding the citation of unpublished opinions.)
United States Court of Appeals, Seventh Circuit.
William A. CHAVIS, Plaintiff/Appellant,
v.
J.W. FAIRMAN, Warden/Director, O. Sheahan, Cook County Sheriff
and Superintendent Russell, of Division 5, Defendants/Appellees.
No. 94–1503.
|
Submitted April 6, 1995. *
|
Decided April 6, 1995.
Appeal from the United States District Court, for the Northern District of Illinois, Eastern Division, No. 92 C 7490; Marvin
E. Aspen, Judge.
Synopsis
N.D.Ill., 1994 WL 55719.
AFFIRMED.
Procedural Posture(s): On Appeal.
Before BAUER, COFFEY and FLAUM, Circuit Judges.
ORDER
*1 William A. Chavis appeals the dismissal of his suit, brought under 42 U.S.C. § 1983, for failure to state a claim. Fed.R.Civ.P.
12(b)(6). Chavis, an inmate filing this suit pro se, asserts that the conditions at Cook County Jail while he was a pre-trial detainee
violated his constitutional rights under the First, Eighth and Fourteenth Amendments. For the reasons stated in the attached
order, we AFFIRM the district court's judgment.
ATTACHMENT
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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William A. Chavis, Plaintiff,
v.
J.W. Fairman, et al., Defendants.
Case No. 92 C 7490
Docketed Feb. 22, 1994
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Plaintiff William A. Chavis (“Chavis”) brings this pro se action under 42 U.S.C. § 1983 against defendants J.W. Fairman,
Michael Sheahan, and Carl Russell (collectively “defendants”). Chavis alleges that defendants violated his First, Eighth, and
Fourteenth Amendment rights as a result of their deliberate indifference to certain conditions of his confinement. Presently
before us is defendants' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim. 1 For the following reasons, we grant the motion.
I. Motion to Dismiss Standard
A motion to dismiss should not be granted unless it “appears beyond doubt that the plaintiff can prove no set of facts in support
of his claims which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
As with all motions to dismiss, we will take the “well-pleaded allegations of the complaint as true and view them, as well as
reasonable inferences therefrom, in the light most favorable to the plaintiff.” Balabanos v. North Am. Inv. Group, Ltd., 708
F.Supp. 1488, 1491, n. 1 (N.D.Ill.1988). Moreover, because Chavis is proceeding pro se, we will construe his pleadings more
liberally than those submitted by attorneys. Haines v. Kerner, 404 U.S. 509, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972).
II. Factual Background
For approximately four and a half months, Chavis was a pretrial detainee confined at the Cook County Jail. Chavis' litany of
claims can best be summarized as follows:
(1) he received inadequate medical and dental care;
(2) the toilet facilities at the jail were filthy;
(3) he had inadequate lighting;
(4) he was forced to eat on the dining room floor where bugs flew around his head and mice could be seen at night;
(5) he did not receive adequate portions of food and sometimes the food was spoiled;
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(6) he was forced to sleep on a mattress on the floor of his unit's dining room for over a year because the jail was overcrowded
(there were 106 inmates in a unit that was built to house 40, and 109 inmates in another unit that was built to house 44);
(7) as a result of numerous gunshot wounds in his leg and hip, he suffered leg and hip pain from sleeping on a mattress on
the floor;
*2 (8) he slept close to drug addicts with infected track marks on their bodies and near inmates with communicable diseases;
(9) he only received a clean uniform once every three weeks and was threatened with abuse if he washed his uniform himself;
(10) he received inadequate showers (only one of the jail's four showers was functional);
(11) he was only allowed outdoor exercise once a month;
(12) due to the overcrowding, it was difficult to sit in the recreation room to read or watch television;
(13) he was denied religious services because the officers in charge never selected him to go;
(14) he was threatened for complaining to other inmates about the conditions at the jail;
(15) officers from the county sheriff's office kicked and stepped on his leg and hit him in the head several times causing him
to go to the medical facility for pain pills;
(16) he was subjected to verbal abuse from members of the county sheriff's office.
After filing a grievance through the prisoner grievance system, only to be told that there was nothing the committee could do
about the conditions of which he complained, Chavis filed this § 1983 action seeking declaratory and injunctive relief as well as
monetary damages. 2 In his complaint, Chavis explicitly states that he is suing defendants in their official capacity and charges
that defendants are responsible for the actions of county officers who kicked and beat him.
III. Discussion
Defendants seek to dismiss plaintiff's complaint in its entirety on the grounds that Chavis has not stated any claims upon which
relief can be granted. We address Chavis' allegations in turn.
A. Equitable Relief
To begin with, defendants contend that Chavis' equitable claims are moot under the class action consent decree that was entered
in Duran v. Elrod, No. 74 C 2949 (N.D.Ill. April 9, 1982), another case between pretrial detainees and the Cook County Jail.
Indeed, Chavis' requests for declaratory and injunctive relief against defendants are governed by the terms of the Duran consent
decree. The Duran class includes all Cook County pretrial detainees and the consent decree mandated renovation of the county
jail facilities, increased staff members, improved food services, provision of personal hygiene supplies, increased access to the
law library, and more physical exercise periods and visitation hours. Duran v. Elrod, 713 F.2d 292, 293 (7th Cir.1983), cert.
denied, 465 U.S. 1108, 104 S.Ct. 1615, 80 L.Ed.2d 143 (1984).
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Normally, a judgment or decree resolves issues among parties to a lawsuit and does not affect parties outside the proceedings.
However, class actions are an exception to this rule. Martin v. Wilks, 490 U.S. 755, 761–62, 109 S.Ct. 2180, 2184, 104 L.Ed.2d
835 (1989). Because the Duran class action involved rights of pretrial detainees and the consent decree is continuing in nature,
Chavis is a member of that class even though he was not present in the jail when the decree was ordered. See Martin v. Davies,
917 F.2d 336, 339 (7th Cir.1990), cert. denied, 111 S.Ct. 2805, 115 L.Ed.2d 978 (1991).
*3 Equitable claims arising out of violations of a contempt decree must be addressed through contempt proceedings before
the supervising court. Martin, 917 F.2d at 339. In this instance, Judge Milton I. Shadur oversees the Duran consent decree, not
this Court. Accordingly, Chavis' equitable claims are not properly before us. 3
B. Damage Claims
Unlike equitable claims, the Duran consent decree does not bar § 1983 damages claims that derive from conditions of
confinement for pretrial detainees in the Cook County Jail. Martin, 917 F.2d at 340. 4 We turn, then, to the various flaws
defendants have identified in plaintiff's complaint.
1. Inadequate Medical and Dental Care, Lighting, and Toilet Facilities
Defendants seek to dismiss several of Chavis' claims on the grounds that he has failed to supply more than conclusory allegations.
While courts will liberally construe pro se complaints, some facts must be intimated to support a claim in order to withstand
dismissal. Strauss v. City of Chicago, 760 F.2d 756, 767. Here, Chavis offers no information to buttress his naked assertions
that he has received inadequate medical and dental care, and that the lighting and toilet facilities were likewise “inadequate.”
Complaint at ¶ ¶ 3 & 17. Without more, these claims simply cannot survive a motion to dismiss. Accordingly, we grant
defendants' motion with respect to these claims.
2. Food and Dining Conditions
Chavis alleges that while incarcerated at the jail he had to eat on the floor where little bugs flew around his food, that he was
routinely served “incorrect” portions of food, and that sometimes he was served spoiled food. Defendants correctly point out
that these claims lack detail—leaving us to wonder, for instance, what constitutes an “incorrect” portion of food and how often
Chavis received spoiled food—and contend that the claim should be dismissed.
It is clear that prisons have an obligation to “provid[e] nutritionally adequate food that is prepared and served under conditions
which do not present an immediate danger to the health and well being of the inmates who consume it.” French v. Owens,
777 F.2d 1250, 1255 (7th Cir.1985) (quotations omitted), cert. denied, 479 U.S. 817, 107 S.Ct. 77, 93 L.Ed.2d 32 (1986). The
question, then, is whether the conditions of which Chavis complains fall below this standard.
Offered independently, each of Chavis' complaints fails to state a constitutional violation. Unlike the persistent provision of
inedible meals, occasional service of spoiled food cannot be said to deprive inmates of basic nutritional needs. Similarly, while
providing inmates with vermin infested food clearly rises to the level of a constitutional infraction, a mere allegation that
bugs flew around the food, without more, 5 does not sufficiently allege that the jail served nutritionally inadequate food that
threatened the health of those who consumed it. As for Chavis' charge that he was routinely served “incorrect” portions, this
assertion is simply too vague to support a claim. Finally, while we acknowledge that eating on the floor is less comfortable than
at a table, this side effect of overcrowding adds little to Chavis' efforts to state a constitutional claim.
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*4 Even taken together these claims fail to survive dismissal. The Supreme Court recently stated that “[s]ome conditions of
confinement may establish an Eighth Amendment violation ‘in combination’ when each would not do so alone, but only when
they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth,
or exercise....” Wilson v. Seiter, 111 S.Ct. 2321, 2327 (1991) (emphasis omitted). This is not such a case. While Chavis depicts
less than optimal eating conditions and fare, all of his allegations combined still fail to suggest that he was being served food
which posed “an immediate danger to his health and well being.” Thus, we dismiss this claim.
3. Sleeping Conditions
Chavis complains that he was forced to sleep on a mattress on the floor in a room with numerous other inmates, rather than
on a bed in a cell. His primary objection to this situation seems to be that sleeping on a mattress on the floor caused pain in
his hip and leg. This claim must fail.
Courts in this district have previously recognized that, unless aggravating circumstances exist, “the Constitution is indifferent
as to whether the mattress a detainee sleeps on is on the floor or on a bed.” Lynch v. Sheahan, 92 C 1087, 1992 U.S.Dist. LEXIS
7749 (N.D.Ill. May 29, 1992). See also Powell v. Cook County Jail, 814 F.Supp. 757, 759 (N.D.Ill.1993) (same); Bowden v.
Fairman, 92 C 7613, 1992 U.S.Dist. LEXIS 18399 (N.D.Ill.1992) (same). While Chavis alleges that mice could be seen in his
unit at night, he notably does not allege that he came into contact with the mice, nor would such an allegations necessarily salvage
his claim. Courts have routinely recognized that “[k]eeping vermin under control in jails, prisons and other large institutions is a
monumental task,” and that “failure to do so, without any suggestion that it reflects deliberate and reckless conduct in the criminal
law sense, is not a constitutional violation.” Bowden v. Fairman, No. 92 C 7613, 1992 WL 366905, 1992 U.S.Dist. LEXIS 18399
(N.D.Ill. December 2, 1992) (citing Harris v. Fleming, 839 F.2d 1232 (7th Cir.1988). See also Lynch v. Sheahan, No. 92. C 1087,
1992 WL 245599, 1992 U.S.Dist. LEXIS 13858 (N.D.Ill. Sept. 11, 1992) (absent showing that sleeping conditions were result
of punitive intent, rather than overcrowding, fact that rats and roaches crawled over plaintiff while sleeping on a mattress on
the floor of the Cook County Jail insufficient to survive summary judgment motion). More significantly, Chavis acknowledges
that the sleeping conditions at the jail were the direct result of overcrowding, rather than the product of any punitive intent on
defendants' part. Accordingly, we dismiss this claim. See Jones v. Sheahan, 1993 WL 147480 at *2, 1993 U.S.Dist. LEXIS
6010 at *6 (N.D.Ill.1993) (where Sheriff of the Cook County Jail were “limited by the funds and facilities that had been made
available to him by those controlling the purse strings,” conditions caused by overcrowding would not support a § 1983 claim).
4. Proximity to Drug Addicts and Inmates with Communicable Diseases
*5 As for Chavis' claim that he was forced to sleep near inmates with communicable diseases and next to drug addicts with
infected track marks, defendants properly highlight the absence of any allegations of injury. That is, Chavis nowhere claims that
he contracted any communicable disease, or suffered any other injury, as a result of his proximity to these inmates. Accordingly,
this claim, too, is dismissed. See Bowden, 1992 WL 366905 at *1–2, 1992 U.S.Dist. LEXIS at *4 (where plaintiff did not allege
that he contracted tuberculosis, he could not maintain a § 1983 claim predicated on being housed with tubercular inmates)
(citing Niehus v. Liberio, 973 F.2d 526, 531–32 (7th Cir.1992)).
5. Clothing Changes and Showering
Chavis alleges that he was only provided with a change of uniform once every three weeks, and that in the interim he was
effectively prohibited from washing his clothes. Additionally, according to Chavis, 106 inmates were required to share a single
functional shower. 6 The Constitution obliges penal institutions to provide inmates with basic hygienic necessities in keeping
with “the minimal civilized measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399 (1981).
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However, when compared with conditions that have been held constitutional in this circuit, it rapidly becomes clear that Chavis'
claims do not amount to constitutional deprivations.
In Harris v. Fleming, 839 F.2d 1232 (7th Cir.1988), a prisoner was allegedly deprived of toilet paper for five days, was not
provided with soap, toothpaste or a toothbrush for 10 days, and was kept in a filthy, roach-infested cell. The Seventh Circuit
concluded that these deprivations did not amount to unconstitutional punishment where the conditions were temporary and
the plaintiff did not suffer any physical harm. Similarly, in Lock v. Clark, No. S90–327, 1992 WL 559660, 1992 U.S.Dist.
LEXIS 21991 (N.D.Ind. March 17, 1992), the court found no constitutional violation where an inmate was held without soap
and hygienic items for seven days, denied access to a shower, given only one and a half rolls of toilet paper, and left to wear
only his undershorts.
By comparison, it is clear that wearing the same uniform for three weeks and sharing a shower with 106 inmates do not amount
to the sort of serious deprivations that drag Chavis' conditions of confinement below “the minimal civilized measure of life's
necessities.” This is particularly true where, as here, Chavis fails to allege any injury stemming from either condition and
neglects to detail how often he was permitted to shower. 7 We therefore dismiss these claims.
6. Recreation
During his stay at Cook County, Chavis was only permitted to exercise outside once a month. Furthermore, he alleges that it
was difficult for him to find a seat in the television room, since inmates were wont to step on legs and other limbs that got in
their way. 8 Lack of exercise may rise to a constitutional violation “[w]here movement is denied and muscles are allowed to
atrophy, the health of the individual is threatened and the state's constitutional obligation is compromised.” French, 777 F.2d at
1255. Generally, even dramatic restrictions on outdoor exercise do not violate the Eighth Amendment (or due process, where
pretrial detainees are at issue) so long as prisoners have ample opportunity to enjoy indoor activity. See Stewart v. McGinnis,
800 F.Supp. 604 (N.D.Ill.1992), (although inmates were not permitted to exercise outdoors during an 85–day lockdown period,
they were allowed to leave their cells, use the day room, and generally move about the prison, thus undercutting plaintiff's
constitutional claim), aff'd, 5 F.3d 1031 (7th Cir.1993).
*6 Here, Chavis' allegations clearly demonstrate that he enjoyed significant freedom of movement around the prison. Although
he laments the crowded condition of the television room, it is obvious that he has sufficient mobility to obviate his constitutional
claims. Moreover, Chavis fails to allege that he suffered from any adverse health effects, let alone that his muscles atrophied.
For these reasons, we dismiss these claims.
7. Access to Religious Services
In Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972), the Supreme Court stated that the First Amendment
guarantees inmates a “reasonable opportunity” to practice religion. 9 This Court later expanded upon that general statement,
holding that an inmate “is not denied a reasonable opportunity to practice his religion so long as he is granted regular access to
religious services.” Houlihan v. Moynihan, No. 87 C 3779 (N.D.Ill. June 26, 1989). Chavis alleges that
county officers pick and choose who they want to go to religious services, [sic] as plaintiff [sic] beliefs
are Islamic, and have been denied every time he tries to attend, as the officers working here only select
who they want to go, meaning a certain number.
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Complaint at ¶ 10. Although the mere necessity to limit the number of inmates who can attend religious services at any one time
may well serve a legitimate penological function, Chavis' assertion that he was denied any access to religious services during
his entire four and a half month stay is sufficient to allege that he was denied a reasonable opportunity to practice his religion.
However, Chavis is not home free, yet. In addition to stating a constitutional violation, Chavis must allege the requisite intent
on the defendants' part in order to hold them liable. Here, Chavis makes clear that it was the guards who were responsible
for selecting inmates to attend religious services, not defendants. Moreover, while we may reasonably infer a prison policy of
restricting the number of prisoners who may go to services at any one time, we may not assume, without further allegations,
that the jail had a policy either of preventing Muslims in general, or Chavis specifically, from worshipping.
Additionally, Chavis includes no allegations from which we can deduce that the named defendants were aware of the guards'
conduct and consciously permitted it to continue. Although Chavis alleges that he filed a grievance—only to be told that the
committee “could do nothing about the situation here”—he neglects to apprise us of when the grievance was filed or, more
importantly, whether it included this complaint. Without this information, we have no basis for supposing that any of the
defendants were aware of Chavis' exclusion from worship services or that they had an opportunity to correct the situation.
Without any basis from which to infer that defendants harbored any punitive intent toward Chavis, we must dismiss this claim.
8. Threats for Expressing His Beliefs
*7 Chavis alleges that he was threatened for complaining to other prisoners about jail conditions. However, it is plain that
“[a]llegations of mere threats of violence are not punishment in the constitutional sense.” Murphy v. Cook County, No. 92 C
3737, 1992 U.S.Dist. LEXIS 8959 (N.D.Ill. June 19, 1992) (citing Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989);
Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979) (per curiam ); Simms v. Reiner, 419 F.Supp. 468, 474 (N.D.Ill.1976)). This
claim, then, is dismissed.
9. Physical and Verbal Abuse by Officers from the Sheriff's Department
Chavis alleges that during his stay at the jail, corrections officers sometimes kicked him in his injured right leg and hit him in
the head. In addition, he complains that county officers regularly cursed him and called him foul names for no reason. Notably,
however, Chavis does not identify the officers who engaged in this conduct, nor does he offer any indication that the named
defendants were aware of the situation, let alone that they participated in or directed it.
In order to state a claim against any of the defendants under § 1983, Chavis must allege that the defendants were somehow
involved in the constitutional violation at issue. While Chavis may have grounds for an action against the guards themselves,
government officials cannot be held liable on a theory of respondeat superior. Because it is evident from his complaint, that the
instant defendants had nothing to do with Chavis' alleged physical and verbal mistreatment, these claims are dismissed.
IV. Conclusion
For the foregoing reasons, we grant defendants' motion to dismiss. It is so ordered.
Dated 2/15/94
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All Citations
51 F.3d 275 (Table), 1995 WL 156599
Footnotes
* After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral
argument would not be helpful to the court in this case. The notice provided that any party might file a “Statement as
to Need of Oral Argument.” See Fed.R.App.P. 34(a); Cir.R. 34(f). No such statement having been filed, the appeal is
submitted on the briefs and the record.
1 We read Chavis' “Motion for Judgment against Defendants' [sic]” as a response to defendants' motion to dismiss, and
view his additional motion for judgment as a surreply. To the extent that these filings represent independent motions,
they are denied.
2 Chavis provides no details about the contents of the grievance or when it was filed.
3 In any event, the fact that Chavis has since been transferred from Cook County Jail first to the Illinois Department of
Corrections facility in Joliet and then to the IDOC institution in Lincoln effectively moots his claims for equitable relief.
Martin, 917 F.2d at 339.
4 While the due process clause of the Fourteenth Amendment, rather than the Eighth Amendment, applies to constitutional
claims brought by pretrial detainees, the standard to be applied in both situations is essentially the same. In § 1983
punishment claims, a detainee, like a prisoner, must establish (1) that the alleged deprivation amounts to a constitutional
denial, and (2) that the official intentionally inflicted harm, or that he had actual knowledge of impending harm and
consciously refused to take reasonable steps to prevent it. Wilson v. Seiter, 111 S.Ct. 2321 (1991).
5 For example, Chavis does not allege that bugs could be found in or on his food, or, indeed, that he was not able to
successfully swat them away. Although we acknowledge the discomfort such conditions undoubtedly cause, we cannot
conclude that they amount to a constitutional violation.
6 Chavis' allegations have some notable gaps. For example, Chavis does not indicate whether he was afforded any clean
underwear during the three weeks, nor does he explain how often he was actually allowed to shower. These, of course,
are salient oversights.
7 In Davenport v. De Robertis, 844 F.2d 1310, 1316 (7th Cir.1988), cert. denied, Lane v. Davenport, 488 U.S. 908, 109
S.Ct. 260, 102 L.Ed.2d 248 (1988), for example, the Seventh Circuit held that one shower per week was constitutionally
sufficient under the Eighth Amendment. We have no reason to infer that Chavis was allowed less than one shower per
week.
8 In Chavis' own words, “the majority of the inmates here are not that polite.” Complaint at ¶ 17.
9 The First Amendment rights afforded pretrial detainees are the same as those afforded convicted inmates. See Bell v.
Wolfish, 441 U.S. 520, 545–46, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
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Chavis v. Kienert, Not Reported in F.Supp.2d (2005)
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2005 WL 2452150
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
George M. CHAVIS, Plaintiff,
v.
G. KIENERT, Deputy of Programs; C.O. Dumas, Shu (Disciplinary); C.O. Donovan, Shu (Disciplinary); R.
Girdich, Prison Superintendent; A. Boucaud, Deputy of Administration; D. Selsky, Shu Disciplinary Director; R.
Donaldson, Civilian Grievance Supervisor; Ms. Daggett, Shu Corrections Counselor; L. Friot, Senior Corrections
Counselor; A. Tousignant, Prison Nurse Administrator; Ms. Buffman, Medical Staff “PA”; Dr. L.N. Wright,
Chief Medical Officer; C.O. J. Rock, Hearings; J. Donelli, Deputy (First) Superintendent; Lucien J. LeClaire,
Deputy Commissioner; J. Cromp, Grievance Officer; C.O. M. White, Shu; C.O. G. Canning, Hearings; Mr.
Johnson, Prison Doctor; C .O. M. Yuddow, Shu; and Richard D. Roy, Inspector General's Officer, Defendants. 1
No. 9:03-CV-0039(FJSRFT).
|
Sept. 30, 2005.
Attorneys and Law Firms
George M. Chavis, Southport Correctional Facility, Pine City, New York, Plaintiff pro se.
The Attorney General of the State of New York, The Capitol, Albany, New York, for Defendants, Kate H. Nepveu, AAG, of
counsel.
MEMORANDUM-DECISION AND ORDER
SCULLIN, Chief J.
I. INTRODUCTION
*1 On January 9, 2003, Plaintiff George M. Chavis filed his complaint in this civil rights action, pursuant to 42 U.S.C. §
1983, against twenty-one Defendants, alleging that, during the time that he was incarcerated at Upstate Correctional Facility,
Defendants violated his rights under the First, Eighth, and Fourteenth Amendments. See Dkt. No. 1. Specifically, Plaintiff
alleges that Defendants, collectively and individually, (1) denied him access to the courts when they confiscated his legal mail,
denied him access to the law library, and refused to file grievances that he submitted; (2) retaliated against him in various ways,
whether by issuing false misbehavior reports or by extending his confinement in a Special Housing Unit (“SHU”); (3) violated
his due process rights at various disciplinary hearings; (4) were deliberately indifferent to his serious medical needs; and (5)
housed him in inhumane living conditions. See id.
Currently before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure. See Dkt. Nos. 72, 78, & 79. Plaintiff opposes this motion. See Dkt. No. 75. 2 For the reasons set forth herein, the
Court grants Defendants' motion and dismisses Plaintiff's complaint in its entirety.
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II. BACKGROUND 3
Plaintiff's claims arise from incidents that occurred during the time that he was incarcerated in Upstate Correctional Facility's
SHU between July 1 and December 31, 2002. See generally Dkt. No. 1. On July 1, 2002, Plaintiff was transferred to Upstate
Correctional Facility and was housed in SHU to serve a keeplock sentence imposed at a March 7, 2000 Tier II Disciplinary
Hearing held at Coxsackie Correctional Facility. See Dkt. No. 72, Kate Nepveu, Esq., Decl., dated December 31, 2004, Exhibit
“B,” Inmate Disciplinary History, at renumbered p. 3. 4 Plaintiff was to serve the keeplock sentence from June 27 to July 27,
2002. 5 See id.; see also Dkt. No. 72, Defendants' 7.1 Statement at ¶ 1.
The Upstate Medical Staff received information from Southport Correctional Facility indicating that Plaintiff suffered from
Hepatitis B, asthma, and chronic seasonal allergies as well as allergies to penicillin and seafood. 6 See Nepveu Decl., Exhibit
“K,” Chavis Medical Record, at p. 49. The only medications noted were multi-vitamins. See id. Upon admission to Upstate
Correctional Facility, Plaintiff completed a medical questionnaire regarding his allergy to seafood. See id. at pp. 52-53. Based
upon his responses to the medical questionnaire, A. Branch, 7 DOCS Registered Dietitian, responded that the facility only
served fish, not shellfish, and that the facility would provide Plaintiff with a substitute for fish. See id. at pp. 51-52. On October
22, 2002, the facility formally executed a Therapeutic Diet Request Form and Attendance Agreement. See id. at p. 50.
On July 3, 2002, while serving the above referenced keeplock sentence, Plaintiff wrote a letter, addressed as “legal mail,” to
Stephen F. Gawlik, Assistant Attorney General (“AAG”). See Defendants' 7.1 Statement at ¶ 3; Nepveu Decl., Exhibit “C,”
July 26, 2002 Hearing Packet, at p. 6. The letter included language such as
*2 neither one of your vindictive KKK clients will get away with it. I'll seek everyone out and put them
each under the fucken [sic] dirt w/their devils (illegible). I will get retribution on everyone [sic] of you
because I know that all of you are in this together, but you'll pay for it.
See id. at p. 8.
Due to the threatening nature of the letter, AAG Gawlik forwarded it to facility officials for investigation. See Nepveu Decl.,
Exhibit “C,” at p. 6. On July 12, 2002, after interviewing Plaintiff, who admitted writing the letter, Defendant G. Canning wrote
a misbehavior report charging Plaintiff with violating prison rules 102.10 (threats in writing), 107.11 (inmates shall not harass
any person), and 180.11 (correspondence procedures). See id. at p. 16. 8 Defendant J. Rock, Lieutenant, presided as the hearing
officer at a Tier III Superintendent's Hearing regarding this misbehavior report on July 26, 2002. See Nepveu Decl., Exhibit
“C,” at p. 2. Defendant Rock found Plaintiff guilty of violating prison rules regarding harassment and threats and instituted a
punishment of twelve months' confinement in SHU with corresponding loss of privileges and further recommended nine months
loss of good time. 9 Id. In his written statement of disposition, Defendant Rock explained that, in light of Plaintiff's lengthy
disciplinary history, of which thirteen disciplinary dispositions had been issued since January 2000 for threats and harassment,
and in light of the fact that Plaintiff had exhibited no modification to his behavior, a more severe sentence was warranted. See
id. at p. 3; see also supra note 5. Defendant Rock further noted that Plaintiff had refused assistance from Defendant Daggett,
his selected hearing assistant, and had refused to attend the hearing. See id.; see generally Nepveu Decl., Exhibit “D,” July 26,
2002 Hearing Transcript. The disciplinary disposition, which Defendant Selsky affirmed on appeal, was set to commence on
March 4, 2003, and end on March 4, 2004. 10 See Nepveu Decl., Exhibit “C,” at pp. 1-2.
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On August 21, 2002, Plaintiff wrote a letter to Defendant A. Tousignant, Prison Nurse Administrator, in which he referred to
Defendant Nurse Buffman an “ill-minded lesbian dyke of a deeply rooted perverted mentality” and a “KKK staff member ...
[who] hand masturbates SHU-inmates through the access door.” See Nepveu Decl., Exhibit “E,” Sept. 5, 2002 Hearing Packet,
at pp. 6-8; Defendants' 7.1 Statement at ¶ 7. In response, on August 26, 2002, Defendant Tousignant wrote a misbehavior report
charging Plaintiff with violating prison rule 107.11 (harassing employees). See Nepveu Decl., Exhibit “E,” at p. 5. On September
5, 2002, Defendant Canning presided over a Tier II Disciplinary Hearing regarding this misbehavior report. See id. at p. 1. At the
close of the hearing, Defendant Canning found Plaintiff guilty and sentenced him to thirty days keeplock and loss of privileges.
See id. Plaintiff did not appeal this disposition. See Nepveu Decl ., Exhibit “,” at p. 1.
*3 Between September 6, 2002, and November 12, 2002, Plaintiff received misbehavior reports charging him with
violating prison rules 102.10 (threats), 106.10 (direct order), and 109.12 (movement violation). See id. Two separate Tier III
Superintendent's Hearings were held, after which Plaintiff was found guilty and sentenced to sixty days' confinement in SHU
with loss of privileges and nine months' confinement in SHU with loss of privileges, respectively. See id. The latter punishment
included nine months recommended loss of good time. 11 Id.; Defendants' 7.1 Statement at ¶ 10. Plaintiff did not appeal either
of these dispositions. See Nepveu Decl., Exhibit “B,” at p. 1; Defendants' 7.1 Statement at ¶ 11.
On September 8, 2002, Plaintiff submitted a grievance to the Inmate Grievance Resolution Committee (“IGRC”), which was
filed on September 20, 2002, and designated UST 13378-02. See Nepveu Decl ., Exhibit “I,” Inmate Grievance Packet-UST
13378-02, at p. 13. In his grievance, Plaintiff complained that on September 5 and 6, 2002, during the morning mail pick-up
in SHU, four SHU officers “willfully denied [him] replacement facility envelopes” in exchange for personal envelopes and
“further denied [him] other stationary [sic] supplies, i.e., paper and pens,” thereby preventing him from filing an appeal of his
September 5, 2002 Tier II Hearing. See id. at pp. 13-14. On September 25, 2002, the IGRC advised Plaintiff that he needed
to specify which officers denied him supplies, to which Plaintiff responded, “the blond haired klan officer.” See id. at p. 14.
Since Plaintiff identified one of the officers as the regular officer on duty, an investigation ensued, pursuant to which it was
revealed that Correction Officer (“CO”) Manning was the regular officer but was not on duty on those days and that, furthermore,
the officers who were on duty did not fit the physical description that Plaintiff had supplied. See id. at pp. 1-10. Moreover,
according to facility records, Defendants Dumas and Donovan were not working on Plaintiff's gallery on September 5 and 6,
2002. Defendants' 7.1 Statement at ¶ 18; Nepveu Decl., Exhibit “I,” at p. 9.
On December 23, 2002, Defendant J. Cromp issued a misbehavior report against Plaintiff due to the harassing nature of a
grievance he had submitted regarding Nurse Buffman. See Nepveu Decl., Exhibit “G,” Jan. 6, 2003 Hearing Packet/December
23, 2002 Misbehavior Report. Plaintiff's grievance, dated December 15, 2002, 12 described Defendant Buffman as a “despicable
piece of trash” and an “ill-minded and vindictively racist character.” See id. at p. 11. Although the grievance was accepted
for filing and designated UST 14452-2, Plaintiff was charged with violating prison rule 107.11 (harassing employees). See
Nepveu Decl., Exhibit “G,” at p. 9; Exhibit “J,” Consolidated Inmate Grievances, at pp. 4 & 14. Subsequently, on December
24, 2002, during sick call, Plaintiff called Defendant Buffman a “bitch,” told her to “drop dead,” and said, “I'll kill you.” See
Nepveu Decl., Exhibit “H,” January 6, 2003 Hearing Packet/December 24, 2002 Misbehavior Report. Defendant Buffman
issued Plaintiff a misbehavior report charging him with violating prison rules 102.10 (threats), 107.10 (interference), and 107.11
(harassing employees). See id. at p. 10. On January 6, 2003, Lieutenant D. Quinn 13 presided as the hearing officer over two
Tier II Disciplinary Hearings regarding the December 23 and 24 Misbehavior Reports. See Nepveu Decl., Exhibits “G” &
“H.” Plaintiff was found guilty of all charges and received two consecutive thirty-day sentences of keeplock confinement and
corresponding loss of privileges. 14 See Nepveu Decl., Exhibit “G,” at p. 6, Exhibit “H,” at p. 7; Defendants' 7.1 Statement at ¶
17. Both dispositions were affirmed on appeal. See Nepveu Decl., Exhibit “B,” at p. 1; Exhibit “G,” at p. 1; Exhibit “H,” at p. 1.
*4 With regard to the grievance that Plaintiff submitted regarding Defendant Buffman, Plaintiff claimed that on December 16,
2002, Defendant Buffman passed over his cell during sick call and did not provide him with his medication refills. See Nepveu
Decl., Exhibit “J,” at p. 4. This grievance was consolidated with another grievance in which Plaintiff complained that he was
being denied the right to see a doctor and denied medication refills. See id. at pp. 3, 12, & 14. In its recommendation, the IGRC
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advised Plaintiff to refrain from using derogatory remarks because such remarks were counterproductive to the institution's
ability to investigate. See id. at p. 5. The IGRC further noted that on December 24, 2002, Defendant Buffman asked Plaintiff what
refills he needed, to which he responded, “I'll kill you, drop dead bitch.” See id. Both the Superintendent and CORC affirmed
the IGRC's determination on appeal. See id. at pp. 7, 11. CORC admonished Plaintiff for using offensive and inflammatory
language and also noted that Plaintiff had been non-compliant with sick call procedures on December 10, 13, and 20, 2002, as
he either remained in bed or was sleeping. See id. at p. 11.
During the relevant time period, July 1 through December 31, 2002, the medical staff at Upstate Correctional Facility saw
Plaintiff a total of eighty-five times, an average of fourteen visits per month. See Nepveu Decl., Exhibit “K,” at pp. 18-48.
Furthermore, prior to receiving his Therapeutic Diet Request Form on October 22, 2002, Plaintiff never lodged any complaints
with any medical staff regarding fish substitutions or any other dietary related problems. 15 See id.
On the following dates in 2002, Plaintiff was non-compliant with sick call procedures: July 29 (asleep during scheduled/
requested sick call), August 6 (uncooperative and belligerent), August 14 (asleep during scheduled/requested sick call), August
15 (uncooperative and belligerent), August 19 (asleep during scheduled/requested sick call), August 21 (complained of jock
itch but refused exam of area), September 25 (asleep during scheduled/requested sick call), October 4 (asleep during scheduled/
requested sick call), October 5 (asleep during scheduled/requested sick call), October 6 (asleep during scheduled/requested
sick call), October 9 (refused to come to cell door), October 10 (asleep during scheduled/requested sick call), October 11
(asleep during scheduled/requested sick call), December 4 (refused to come to cell door), December 5 (refused to come to
cell door), December 7. (asleep during scheduled/requested sick call), December 9 (asleep during scheduled/requested sick
call), December 13 (asleep during scheduled/requested sick call), December 15 (uncooperative during exam), December 18
(asleep during scheduled/requested sick call), December 20 (asleep during scheduled/requested sick call), December 22 (asleep
during scheduled/requested sick call), December 23 (asleep during scheduled/requested sick call), December 24 (belligerent
and disrespectful-Misbehavior Report issued), and December 28 (asleep during scheduled/requested sick call). See Nepveu
Decl., Exhibit “K,” at pp. 18-41.
III. DISCUSSION
A. Summary Judgment Standard
*5 Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate only where “there is no
genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
The moving party has the burden to demonstrate through “ ‘pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits, if any,” ’ that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51,
54 (2d Cir.1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting
Fed.R.Civ.P. 56(c))). “When a party has moved for summary judgment on the basis of asserted facts supported as required by
Fed.R.Civ.P. 56(e) and has, in accordance with local court rules, served a concise statement of the material facts as to which
it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the
nonmoving party.” Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992) (citation omitted).
To defeat a motion for summary judgment, the non-movant must “set forth specific facts showing that there is a genuine issue
for trial,” and cannot rest on “mere allegations or denials” of the facts that the movant submitted. Fed.R.Civ.P. 56(e); see also
Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a
motion for summary judgment when the moving party has set out a documentary case.” (citation omitted)); Rexnord Holdings,
Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994) (citation omitted). To that end, “sworn statements are more than mere
conclusory allegations subject to disregard ... they are specific and detailed allegations of fact, made under penalty of perjury,
and should be treated as evidence in deciding a summary judgment motion,” Scott, 344 F.3d at 289 (citing Colon v. Coughlin, 58
F.3d 865, 872 (2d Cir.1995), and the credibility of such statements is better left to a trier of fact, see id. (citing Vital v. Interfaith
Med. Ctr., 168 F.2d 615, 621-22 (2d Cir.1999)).
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When considering a motion for summary judgment, “the court must ‘resolve [ ] all ambiguities and draw [ ] all factual inferences
in favor of the nonmoving party.” ’ Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998) (quoting
Adams, 143 F.3d at 65). “[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to
discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined
at this point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d
1219, 1224 (2d Cir.1994). Furthermore, where a party is proceeding pro se, the court must “read his supporting papers liberally,
and ... interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)
(citation omitted); accord Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995) (quotation and other citation omitted). Nonetheless,
mere conclusory allegations, which the record does not support, are insufficient to defeat a motion for summary judgment. See
Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991) (citations omitted).
B. Dismissal pursuant to 28 U.S.C. § 1915(g)
*6 Defendants ask this Court to dismiss Plaintiff's claims pursuant to 28 U.S.C. § 1915(g) “on the grounds that [such claims
are] frivolous, malicious, or fail[ ] to state a claim upon which relief may be granted....” 28 U.S.C. § 1915(g).
Under § 1915, individuals may seek leave of the court to pursue their claims without prepayment of fees and costs and proceed
with the litigation as a poor person or in forma pauperis (“IFP”). See 28 U.S.C. § 1915(a)(1). The IFP statute similarly enables
prisoners to apply for this privilege, and indeed, many, if not most, incarcerated individuals bringing suits take advantage of
that opportunity. See 28 U.S.C. § 1915(a)(2). However, under this statute, a court shall dismiss a case if it determines that such
action is “(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Recognizing the potential for prisoner abuse and seeking to relieve the courts of congestion caused by patently frivolous prisoner
suits, Congress enacted the Prisoner Litigation Reform Act of 1996, Pub.L. 104-134, 110 Stat. 1321-66 to 1321-77 (“PLRA”),
which imposes several restrictions upon a prisoner's ability to seek redress in the courts at will. One such mechanism is the so-
called “three strikes rule,” which bars inmates from proceeding IFP after three or more previous actions, in which the court
granted the prisoner IFP status, have been dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner
is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). Specifically, this section provides, in pertinent
part, that
[i]n no event shall a prisoner bring a civil action ... under this section if the prisoner has, on 3 or more
prior occasions, while incarcerated ... brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
In recognizing that the PLRA amendments foster legitimate governmental interests, the Second Circuit has stated that
[p]rior to the enactment of the in forma pauperis amendments, inmates suffered no economic disincentive to filing lawsuits.
Indeed, the very nature of incarceration-prisoners have substantial free time on their hands, their basic living expenses are paid
by the state and they are provided free of charge the essential resources needed to file actions and appeals, such as paper, pens,
envelopes and legal materials-has fostered a “ ‘nothing to lose and everything to gain” ’ environment which allows inmates
indiscriminately to file suit at taxpayers' expense.
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Nicholas v. Tucker 114 F.3d 17, 20 (2d Cir.1997) (citing Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir.1983) (quotation
omitted)).
*7 The Supreme Court has explained that there are two instances where a dismissal of an action as frivolous is warranted.
See Neitzke v. Williams, 490 U.S. 319, 327 (1989) (citations omitted); see also Welch v. Galie, 207 F.3d 130, 131 (2d Cir.2000)
(citations omitted). First, when the “factual contentions are clearly baseless,” for example, where the allegations are the product
of delusion or fantasy, dismissal is warranted. Neitzke, 490 U.S. at 327-28. The second instance is where the claim is “based on
an indisputably meritless legal theory....” Id. at 327. “A claim is based on an ‘indisputably meritless legal theory’ when either
the claim lacks an arguable basis in law, Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir.1990) (per curium ), or a dispositive
defense clearly exists on the face of the complaint. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir.1995).” Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 437 (2d Cir.1998).
With these standards in mind, the Court must determine which claims, if any, are subject to dismissal pursuant to 28 U.S.C.
§ 1915(g).
C. New Claims
As Defendants note in their Reply Memorandum of Law, Plaintiff raises new claims in his opposition to their motion. See, e.g.,
Dkt. No. 75, Plaintiff's Aff. in Opposition, at pp. 30-32; Dkt. No. 78, Defendants' Reply Memorandum of Law, at 3.
The Court notes that opposition papers are not the proper vehicles for adding new causes of action or for adding new defendants.
See In re Private Capital Partners, Inc., 139 B.R. 120, 124-25 (Bankr.S.D.N.Y.1992) (citing cases for the proposition that
a plaintiff's attempt to amend his complaint by instituting new causes of action in his opposition papers to the defendants'
dispositive motion is in direct contravention of and amounted to an attempt to circumvent the Federal Rules of Civil Procedure,
namely Rule 15(a)). If Plaintiff had wanted to supplement or amend his complaint in this case, he should have followed the
proper procedural mechanisms set forth in the Federal Rules of Civil Procedure and this District's Local Rules. Specifically, he
should have made any such request by filing a motion seeking that relief.
Furthermore, “it is well established that arguments in legal memoranda may not in themselves serve to create a triable issue
of material fact when unsupported by accompanying affidavits, pleadings, depositions, or stipulations.” Greaves v. State of
New York, 958 F.Supp. 142, 144 (S.D.N.Y.1997) (citing 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure: Civil 2d § 2723 at 64 (1996)) (other citation omitted). Therefore, the Court will not construe Plaintiff's
current submission as a motion to amend or supplement his complaint; thus, any new claims that he has raised in his opposition
papers are not properly before the Court, and the Court will not consider them.
D. Fourteenth Amendment-Due Process
*8 Plaintiff asserts that the following Defendants violated his Fourteenth Amendment rights to due process: 16
(1) G. Kiernert, Deputy of Programs, on July 1, 2002, subjected Chavis to illegal SHU confinement with full deprivation of
privileges without an adequate disciplinary disposition (Complaint at attached pp. 1-2);
(2) A. Boucaud, Deputy of Administration, on July 1, 2002, subjected Chavis to illegal SHU confinement with full deprivation
of privileges without an adequate disciplinary disposition and fabricated/extended SHU confinement (Complaint at attached
pp. 2-3);
(3) R. Girdich, Prison Superintendent, subjected Chavis to illegal SHU confinement with full deprivation of privileges without
an adequate disciplinary disposition (Complaint at attached p. 3);
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(4) J. Donelli, First Deputy Superintendent, on July 1, 2002, subjected Chavis to illegal SHU confinement with full deprivation
of privileges without an adequate disciplinary disposition (Complaint at attached p. 4);
(5) Ms. Daggett, Corrections Counselor, on July 1, 2002, subjected Chavis to illegal SHU confinement with full deprivation of
privileges without an adequate disciplinary disposition and, on July 25, 2002, as a selected Tier III Assistant, failed to complete
her duty to assist Chavis at his Hearing (Complaint at attached p. 7);
(6) J. Rock, CO Hearings, violated Chavis's due process rights at a Tier III Superintendent's Hearing held on July 26, 2002
(Complaint at attached p. 8);
(7) G. Canning, CO Hearings, on July 13, 2002, authored a false misbehavior report (Complaint at attached pp. 8-9);
(8) L. Friot, Senior Corrections Counselor, on July 1, 2002, subjected Chavis to illegal SHU confinement with full deprivation
of privileges without an adequate disciplinary disposition (Complaint at attached p. 9);
(9) A. Tousignant, Prison Nurse Administrator, filed a retaliatory misbehavior report on August 26, 2002 (Complaint at attached
p. 10);
(10) Ms. Buffman, Physician's Assistant (PA), filed a retaliatory misbehavior report on December 25, 2002 (Complaint at
attached p. 11);
(11) J. Cromp, Grievance Officer, filed a retaliatory misbehavior report on December 24, 2002 (Complaint at attached p. 13);
(12) R. Donaldson, Civilian Grievance Supervisor, on July 10, 2002, failed to file Chavis's grievance (Complaint at attached
p. 14);
(13) D. Selsky, DOCS SHU Disciplinary Director, from July 1, 2002, to the date of the Complaint, subjected Chavis to illegal
SHU confinement with full deprivation of privileges without an adequate disciplinary disposition (Complaint at attached p. 15);
(14) Lucien J. LeClaire, DOCS Deputy Commissioner, on July 1, 2002, subjected Chavis to illegal SHU confinement with full
deprivation of privileges without an adequate disciplinary disposition (Complaint at attached p. 16); and
(15) Richard D. Roy, Inspector General's Officer, on November 26, 2002, subjected Chavis to illegal SHU confinement with
full deprivation of privileges without an adequate disciplinary disposition (Complaint at attached pp. 16-17).
1. Illegal SHU Confinement
*9 The Due Process Clause of the Fourteenth Amendment protects against restraints or conditions of confinement that
“exceed[ ] the sentence in ... an unexpected manner[.]” Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted). “[T]o
present a due process claim, a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s)
deprived him of that interest as a result of insufficient process.” Giano v. Selsky, 37 F.Supp.2d 162, 167 (N.D.N.Y.1999),
vacated and remanded on other grounds by 238 F.3d 223 (2d Cir.2001) (citing Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d
Cir.1996)). In Sandin, the Supreme Court ruled that the Constitution did not require that restrictive confinement within a prison
be preceded by procedural due process protections unless the confinement subjected the prisoner to “atypical and significant
hardship ... in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484; see also Giano v. Selsky, 238 F.3d at 225
(quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Welch v. Bartlett, 196 F.3d 389, 392
(2d Cir.1999)). Thus, a prisoner asserting that a defendant denied him due process in connection with segregated confinement
or a loss of privileges must make a threshold showing that the deprivation of which he complains imposed such an “atypical
and significant hardship.” Sandin, 515 U.S. at 484.
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Although the length of the confinement is one guiding factor in a Sandin analysis, the Second Circuit has cautioned that “there
is no bright-line rule regarding the length or type of sanction” that meets the Sandin standard. Jenkins v. Haubert, 179 F.3d 19,
28 (2d Cir.1999) (citations omitted). Nevertheless, the Court of Appeals has suggested that confinement for a period of less
than 101 days would not constitute an atypical and significant hardship, see Colon v. Howard, 215 F.3d 227, 231 (2d Cir.2000)
(citation omitted); see also Hanrahan v. Doling, 331 F.3d 93, 97-98 (2d Cir.2003); in comparison, segregative sentences of
125-288 days are “relatively long” and therefore necessitate “ ‘specific articulation of ... factual findings' before the district
court could properly term the confinement atypical or insignificant....” Sims v. Artuz, 230 F.3d 14, 23 (2d Cir.2000) (internal
citations omitted).
Plaintiff alleges that, on July 1, 2002, upon his admission to Upstate Correctional Facility, Defendants improperly confined him
in SHU with full deprivation of privileges without a proper “disposition warranting” such confinement and deprivation. Plaintiff
seeks to hold Defendants Kienert, Boucaud, Girdich, Donelli, Daggett, Friot, Selsky, Roy, and LeClaire responsible for violating
his due process rights by either subjecting him to, or allowing him to be subjected to, illegal SHU confinement. Plaintiff also
claims that, on an unspecified date in August 2002, Defendant Boucaud “fabricated a more severe SHU-Disciplinary keeplock
readout sheet” thereby extending Plaintiff's illegal SHU confinement through 2004. See Complaint at attached p. 3.
*10 According to Plaintiff's Inmate Disciplinary History, on March 7, 2000, while at Coxsackie Correctional Facility, he
received a Tier II Disciplinary Hearing resulting in a disciplinary sentence of thirty-days keeplock confinement with loss of
package, commissary, and phone privileges. See Nepveu Decl., Exhibit “B,” at p. 3. The listed service date for this sentence
was set for June 27, 2002, through July 27, 2002. First, the sentence imposed was thirty-days and, absent any allegations
to the contrary, such a brief disciplinary sentence would not implicate a liberty interest. Notably, Plaintiff has not alleged
any circumstances in connection with that sentence that would rise to the level of atypical and significant. Thus, the Court
concludes that, in light of all the circumstances, Plaintiff was subjected to normal SHU conditions for thirty-days, which would
not implicate a liberty interest.
Also, the Court notes that, upon admission to Upstate Correctional Facility, Plaintiff was confined in SHU to serve out his
Coxsackie Correctional Facility keeplock sentence and that New York Regulations specifically authorize such confinement. See
N.Y. Comp.Codes R. & Regs. tit. 7, § 301.6(a)(2) (stating that an inmate in Upstate Correctional Facility “may be housed in a
special housing unit ... for confinement pursuant to a disposition of a disciplinary (Tier II) ... hearing”). Plaintiff contends that
stripping him of his privileges while he was confined in SHU was unwarranted; however, the Coxsackie Correctional Facility
Disciplinary Disposition specifically denied him privileges for the thirty-day sentence. See Nepveu Decl., Exhibit “B,” at p. 3.
The Court also notes that, in this action, Plaintiff has not challenged the propriety of that Disciplinary Disposition and has not
named any party associated with that Hearing as a Defendant in this action, although that issue is the subject of another action
that Plaintiff has commenced in this District. See Chavis v. Zodlow, 128 Fed. Appx. 800 (2d Cir.2005) (unpublished decision
affirming in part and vacating and remanding in part); Nepveu Decl., Exhibit “O,” Chavis v. Zodlow, 9:02-CV-637 (N.D.N.Y.
Dec. 5, 2003) (Decision and Order, Hood, J., sitting by designation).
In liberally construing Plaintiff's claim based upon his arguments and the exhibits that he has submitted, the Court concludes
that Plaintiff is challenging the fact that he lost certain privileges during his confinement in Upstate Correctional Facility's SHU,
at least insofar as he claims he already served that portion of his Coxsackie Correctional Facility Disciplinary Sentence from
March 7, 2000, through April 6, 2000. See Dkt. No. 75 at pp. 4-9A. The records that the parties have submitted to the Court
for its review support Plaintiff's contention that he had already served his thirty-day loss of privileges sentence. See Nepveu
Decl., Exhibit “B,” at p. 3; Dkt. No. 75, at Exhibit “BB,” March 7, 2000 Tier II Hearing Disposition. Although it is unclear
from the record what the privileges were that Plaintiff was denied during his thirty-days in SHU, the Court is mindful that, in
accordance with New York's Regulations, inmates assigned to keeplock status in SHU pursuant to § 301.6 are subject to the
property, visiting, package, commissary, telephone, and correspondence limitations set forth in §§ 302.2(a)-(j). See N.Y.Codes
R. & Regs. tit. 7, §§ 301.6(c)-(h) & 302.2(a)-(j). Plaintiff has not raised any claim that any deprivations that he suffered were
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contrary to the above regulations and, in any event, because Plaintiff's allegations amount to normal SHU conditions, the Court
finds that no liberty interest is implicated.
*11 With regard to Plaintiff's allegation that Defendant Boucaud fabricated a more severe SHU-Disciplinary keeplock readout
sheet, Defendant Boucaud avers, in a sworn Declaration, that he did not alter Plaintiff's records; and Plaintiff has not presented
any proof demonstrating otherwise. In his complaint, Plaintiff states that Defendant Boucaud falsified the document sometime
in August; however, in his opposition papers, which are replete with his incoherent ramblings, Plaintiff argues that Defendants
improperly denied him privileges. Compare Complaint at attached p. 3 with Dkt. No. 75 at pp. 4-9A. This discrepancy is
inexplicable; there is no date in August that this Court can discern on which Defendant Boucaud would have had cause to alter
Plaintiff's confinement in SHU because, by that time, Plaintiff was serving the twelve-month SHU sentence that Defendant Rock
imposed at the July 26, 2002 Tier III Superintendent's Hearing. See Nepveu Decl., Exhibit “B,” at p. 1; see infra Part III.D.3.
Lastly, Plaintiff alleges that Defendant Roy violated his due process rights when he ignored a letter that Plaintiff wrote to him
regarding, among other things, his “illegal” SHU confinement. It is well-settled that the personal involvement of a defendant is
a prerequisite for the assessment of damages in a § 1983 action, see McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977)
(citations omitted), and furthermore, the doctrine of respondeat superior is inapplicable to § 1983 claims, Polk County v. Dodson,
454 U.S. 312, 325 (1981) (citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037,
56 L.Ed.2d 611 (1978)). The fact that Plaintiff may have written a letter to Defendant Roy does not automatically render
him responsible for any constitutional violations. See Thomas v. Coombe, No. 95 Civ. 10342, 1998 WL 391143, *6 (S.D.N.Y.
July 13, 1998) (citations omitted) (ignoring letter is insufficient for personal involvement); Young v. Kihl, 720 F.Supp. 22, 23
(W.D.N.Y.1989) (holding that “the wrong must have been ... capable of mitigation at the time the supervisory official was
apprised thereof” (citation omitted)); Woods v. Goord, No. 97 CIV. 5143, 1998 WL 740782 (S.D.N.Y. Oct. 23, 1998) (holding
that receiving letters or complaints does not automatically make a supervisor liable for the denial of medical care). Thus, Plaintiff
cannot hold Defendant Roy liable for the alleged violation of his constitutional rights simply because he either responded or,
conversely, failed to respond, to a complaint. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1997). In any event, because the Court
has concluded that no violations of Plaintiff's constitutional rights occurred, there is no need for the Court to consider the extent,
if any, of Defendant Roy's involvement. The Court further finds that Plaintiff's general allegations against these nine Defendants
arising from his July 1, 2002 confinement in SHU, regardless of the actual role or power that these Defendants possessed,
are patently frivolous and even borderline malicious. Accordingly, the Court dismisses Plaintiff's due process claims against
Defendants Kienert, Boucaud, Girdich, Donelli, Daggett, Friot, Selsky, Roy, and LeClaire based upon Plaintiff's confinement
to SHU on July 1, 2002, pursuant to 28 U.S.C. § 1915(g).
2. Retaliatory Misbehavior Reports
*12 Plaintiff alleges that Defendants Tousignant, Cromp, and Buffman filed retaliatory misbehavior reports against him on
August 26, December 24, and December 25, 2002, respectively. It is not clear whether Plaintiff challenges the veracity of
these reports. However, to the extent that he is claiming that these reports were false, it is well-settled that prisoners have no
constitutional right to be free from being falsely accused. See Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986) (holding that
prison inmates do not have a “constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which
may result in the deprivation of a protected liberty interest”). Rather, the Constitution guarantees that such inmates will not be
“deprived of a protected liberty interest without due process of law.” Id. Thus, as long as prison officials provide the inmate
with procedural due process requirements, i.e., a hearing and an opportunity to be heard, “ ‘the filing of unfounded charges
d[oes] not give rise to a per se constitutional violation actionable under section 1983.” ’ Franco v. Kelly, 854 F.2d 584, 587 (2d
Cir.1988) (quotation omitted); see also Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974).
However, before the Court addresses such issues, it must determine whether a liberty interest is implicated. The misbehavior
reports at issue resulted in three sentences of thirty-days keeplock and corresponding losses of privileges. See Nepveu Decl.,
Exhibit “B,” at p. 1. Even if this Court were to construe the three sentences in the aggregate, the ninety days total that Plaintiff
was confined in SHU would not, standing alone, implicate a liberty interest. Moreover, because at the time that Plaintiff
filed his complaint he had not yet served these sentences, the Court is unable to determine whether the actual conditions of
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confinement in SHU were atypical or significant. Accordingly, because no liberty interest is implicated, Plaintiff cannot assert
due process violations against Defendants Tousignant, Buffman, and Cromp and, therefore, the Court grants Defendants' motion
for summary judgment with regard to these claims.
Notably, however, there are substantive due process rights, rather than procedural, which cannot be obstructed “ ‘even if
undertaken with a full panoply of procedural protections,” ’ such as the right of access to courts or to be free from retaliation for
exercising a constitutional right. Franco, 854 F.2d at 589 (citation omitted); see id. at 590 (“Although our decision in Freeman
accords prison officials wide latitude in disciplining inmates as long as minimum constitutional procedures are employed, ... that
latitude does not encompass conduct that infringes on an inmate's substantive constitutional rights.” (internal citations omitted)).
Thus, if a prisoner alleges that the defendants filed false disciplinary reports against him in retaliation for exercising a valid
constitutional right, his claim may survive a dispositive motion if he properly alleges that the defendants violated his substantive
due process rights. See id. (“If [the plaintiff] can prove his allegation that he was subjected to false disciplinary charges and
subsequent punishment for his [exercise of a constitutional right], he is entitled to relief under section 1983.”).
*13 Plaintiff does assert that the three misbehavior reports that Defendants Tousignant, Buffman, and Cromp filed against
him were retaliatory in nature. Thus, the Court will address these claims, together with Plaintiff's claim against Defendant
Donaldson for willful failure to file Plaintiff's grievances, below in the context of the standards applicable to substantive due
process claims. See infra Parts III.E-F.
3. Disciplinary Hearings
Finally, Plaintiff claims that Defendants Rock, Daggett, and Canning violated his due process rights in connection with the July
26, 2002 Tier III Superintendent's Hearing. As explained below, since Defendant Rock, as Hearing Officer, recommended a
loss of good time credits and that disposition was affirmed on appeal, Plaintiff's due process claims are barred.
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that a § 1983 action seeking damages is not cognizable
if a decision in favor of the plaintiff would necessarily invalidate a criminal conviction or sentence unless “the conviction or
sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Id.
at 486-87. The Supreme Court later extended its Heck ruling to situations in which inmates challenge disciplinary proceedings
that resulted in a loss of good time credits wherein the validity of a disciplinary or administrative sanction would affect the
length of the plaintiff's confinement. See Edwards v. Balisok, 520 U.S. 641 (1997). This rule does not impose an exhaustion
requirement upon a § 1983 plaintiff, but rather, “den[ies] the existence of a cause of action.” Heck, 512 U.S. at 489.
In the present case, any resolution of Plaintiff's due process claims would ultimately call into question the validity of his
disciplinary conviction. Such claims are, therefore, not cognizable under § 1983 absent a showing that this sentence has
been overturned or invalidated. Plaintiff has not made such a showing and, therefore, the Court grants Defendants' motion
for summary judgment and dismisses without prejudice Plaintiff's due process claims against Defendants Rock, Daggett, and
Canning. 17
E. First and Fourteenth Amendment-Access to Courts
Plaintiff claims that the following Defendants violated his First and Fourteenth Amendment right to petition the courts for
redress:
(1) G. Kienert, on September 5, 6, and 30, 2002, as well as October 25, 2002, ordered SHU officers to confiscate Chavis's legal
mail and deny access to the law library (Complaint at attached pp. 1-2);
(2) R. Girdich, on September 1, 6, and 30, 2002, as well as October 25, 2002, ordered SHU officers to confiscate outgoing
legal mail (Complaint at attached p. 3);
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(3) B. Dumas, CO SHU, on September 5, 6, and 30, 2002, as well as October 25, 2002, confiscated Chavis's legal mail and
denied replacement envelopes, and, on September 8, 2002, as well as unspecified dates in November and December 2002, failed
to send outgoing legal mail (Complaint at attached p. 5);
*14 (4) M. White, CO SHU, on unspecified dates in August, September, and October, 2002, ignored Chavis's request slips
and denied access to the law library (Complaint at attached p. 5);
(5) A. Donovan, CO SHU, on September 5 and 6, 2002, confiscated Chavis's outgoing legal mail, wherein Chavis was unable to
“redo” and mail his administrative appeal and further aided Defendants Kienert, Girdich, and Dumas, presumably, in denying
access to the courts. (Complaint at attached p. 6);
(6) G. Canning, on July 12, 2002, denied Chavis access to his legal materials despite being directed otherwise (Complaint at
attached p. 9);
(7) R. Donaldson, on July 10, 2002, and continuing to the date of the Complaint, failed to redress Chavis's grievances of legal
mail confiscation against Defendants Donovan, Dumas, Girdich, and Kienert (Complaint at attached p. 14); and
(8) Richard D. Roy, on November 26, 2002, ignored the illegal confiscation and censoring of Chavis's legal mail by Defendants
Kienert, Girdich, Dumas, Donovan, and Donaldson (Complaint at attached pp. 16-17).
Interference with legal mail implicates an inmate's First and Fourteenth Amendment rights to access to the courts and free
speech. See Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003). The Second Circuit has stated that in order to state a claim for
denial of access to the courts via interference with legal mail, the plaintiff must show that the defendant caused actual injury,
i.e., the defendant “ ‘took or was responsible for actions that “hindered [a plaintiff's] efforts to pursue a legal claim.” ” ’ Id.
(quotation omitted); see also Cancel v. Goord, No. 00 CIV 2042, 2001 WL 303713, *4 (S.D.N.Y. Mar. 29, 2001) (holding that
“in order to survive a motion to dismiss a plaintiff must allege not only that the defendant's alleged conduct was deliberate and
malicious, but also that the defendant's actions resulted in actual injury to the plaintiff such as the dismissal of an otherwise
meritorious legal claim” (citation omitted)).
Additionally, a prisoner's First Amendment right is implicated when the defendants hinder the “free flow of incoming and
outgoing mail....” Davis, 320 F.3d at 351 (citations omitted). “Restrictions on prisoners' mail are justified only if they ‘further[ ]
one or more of the substantial governmental interests of security, order, and rehabilitation ... [and] must be no greater than is
necessary or essential to the protection of the particular governmental interest involved.” ’ Id. (quoting Washington v. James,
782 F.2d 1134, 1139 (2d Cir.1986)). When balancing these competing interests, “courts have consistently afforded greater
protection to legal mail than to nonlegal mail, as well as greater protection to outgoing mail than to incoming mail.” Id. (citations
omitted). Moreover, when asserting a First Amendment violation resulting from interference with mail, the prisoner must show
that the prison officials “regularly and unjustifiably interfered with the incoming legal mail rather than merely showing an
isolated incident.” Cancel v. Goord, 00 CIV 2042, 2001 WL 303713, *6 (emphasis added) (citing Washington v. James, 782 F.2d
1134, 1139 (2d Cir.1986)); see also Morgan v. Montanye, 516 F.2d 1367, 1371 (2d Cir.1975) (isolated incident of tampering is
insufficient to state a constitutional violation). The Court notes, however, that the Second Circuit has held that as few as two
incidents of mail tampering may be sufficiently actionable “(1) if the incidents suggested an ongoing practice of censorship
unjustified by a substantial government interest, or (2) if the tampering unjustifiably chilled the prisoner's right of access to
the courts or impaired the legal representation received.” Davis, 320 F.3d at 351 (citation omitted). Thus, in cases where the
incidents are few and a violation is not patent, the plaintiff should specifically allege invidious intent or actual harm. See id .
(citing cases). Furthermore, mere “delay in being able to work on one's legal action or communicate with the courts does not
rise to the level of a constitutional violation.” Jermosen v. Coughlin, 877 F.Supp. 864, 871 (S.D.N.Y 1995) (citations omitted);
see also Konigsberg v. Lefevre, 267 F.Supp.2d 255, 261 (N.D.N.Y.2003) (citations omitted).
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*15 Plaintiff fails to state a claim for denial of access to the courts. First, Plaintiff does not claim that Defendants' alleged
confiscation of his outgoing mail, denial of replacement envelopes, denial of access to the law library, and/or denial of access
to his legal papers caused him any actual harm. Moreover, the only concrete harm he alleges is the confiscation of his appeal
from the September 5, 2002 Hearing disposition. In this regard, Plaintiff claims that, on September 5 and 6, 2002, ostensibly on
Defendants Kienert's and Girdich's orders, Defendants Dumas and Donovan confiscated Plaintiff's outgoing mail and refused
to supply Plaintiff with replacement envelopes. Plaintiff further alleges that, on unspecified dates in August, September, and
October, Defendant White ignored his request slips and denied him access to the law library. However, according to the
Declarations that Defendants have submitted to the Court, facility records indicate that Defendants Dumas and Donovan were
not assigned to Plaintiff's gallery on those days; rather, two other correction officers, whom Plaintiff has not named as Defendants
herein, were on duty. See Dkt. No. 72, B. Dumas Decl., at ¶ 4; A. Donovan Decl., at ¶ 4. Furthermore, Defendants Dumas and
Donovan avow that they “never confiscated, kept, improperly returned, or otherwise improperly interfered with Mr. Chavis's
outgoing legal mail[ ]” and Defendant White affirms he never ignored Plaintiff's request slips. See Dkt. No. 72, Dumas Decl., at
¶ 5; Donovan Decl., at ¶ 5; M. White Decl., at ¶ 4. Defendants Kienert and Girdich also aver that they “never ordered anyone to
confiscate, keep, or interfere with Mr. Chavis's outgoing legal or internal mail” within the parameters of DOCS policy. See Dkt.
No. 72, G. Kienert Decl., at ¶ 3; R. Girdich Decl., at ¶ 3. Similarly, with regard to Defendant Donaldson's alleged interference
with Plaintiff's grievances, Defendant Donaldson avows that he never concealed nor failed to docket any grievance that Plaintiff
filed. See Dkt. No. 72, Donaldson Decl., at ¶ 3.
Plaintiff further claims that, on July 12, 2002, Defendant Canning denied him access to his legal materials. Defendant Canning
specifically controverts this allegation in a sworn Declaration, in which he further explains that he wrote a misbehavior report
on July 12, 2002, due to Plaintiff's admission that he had written a harassing letter to an AAG. See Dkt. No. 72, G. Canning
Decl., at ¶¶ 3-5; see also Nepveu Decl., Exhibit “C,” at pp. 6-8 (AAG letter, dated July 9, 2002, & attached Chavis letter, dated
July 3, 2002).
Plaintiff's final claim that Defendants denied him access to the courts is based upon his allegation that Defendant Roy ignored
his letter. The Court dismisses this claim for the reasons stated above regarding personal involvement. See supra Part III.D.1.
In light of the fact that many of Plaintiff's claims of denial of access to the courts are not only conclusory in nature but are also
asserted against individuals who Plaintiff clearly had notice through the grievance process were not even present on the dates
in question, the Court finds that such claims are frivolous. Therefore, the Court dismisses Plaintiff's access-to-the-courts claims
against Defendants Kienert, Girdich, Dumas, White, Donovan, Canning, Donaldson and Roy pursuant to 28 U.S.C. § 1915(g).
F. First and Fourteenth Amendment-Retaliation
*16 Plaintiff asserts that the following Defendants took retaliatory actions against him:
(1) A. Tousignant issued a retaliatory misbehavior report after Chavis filed a grievance against staff on August 28, 2002
(Complaint at attached p. 10);
(2) R. Girdich, on October 30, 2002, fabricated a state charge against Chavis in retaliation for a grievance he had filed (Complaint
at attached p. 4);
(3) G. Canning, on July 13, 2002, filed a retaliatory misbehavior report regarding threats to outside legal sources (Complaint
at attached p. 9);
(4) Ms. Buffman, on December 25, 2002, filed a retaliatory misbehavior report after Chavis filed two grievances against her,
dated December 15 and 16, 2002 (Complaint at attached p. 11); and
(5) J. Cromp, on December 24, 2002, filed a retaliatory misbehavior report for a grievance Chavis filed against Nurse Buffman
on December 16, 2002 (Complaint at attached p. 13).
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The Second Circuit has made it clear that an inmate has a substantive due process right not to be subjected to false misbehavior
charges or to be harassed in retaliation for the exercise of a constitutional right such as petitioning the government for redress of
grievances. See Jones v. Coughlin, 45 F.3d 677, 679-80 (2d Cir.1995) (citing Franco v. Kelly, 854 F.2d 584, 589 (2d Cir.1988)).
To state a First Amendment claim for retaliation, an inmate must demonstrate (1) that he was engaged in constitutionally
protected activity, (2) that the defendant took adverse action against him, and (3) that there was a causal connection between the
protected speech and the adverse action in that the alleged adverse action was substantially motivated by the protected activity.
See Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir.2002) (quotation omitted); see also Gayle v. Gonyea, 313 F.3d 677, 682
(2d Cir.2002) (quotation omitted).
To satisfy the second prong, a prisoner must present evidence to support his claim that the defendants acted with an improper
motive. Such evidence includes (1) temporal proximity between the protected activity and the alleged retaliatory act; (2) the
plaintiff's prior good disciplinary record; (3) the plaintiff's vindication at his disciplinary hearing; and (4) the defendants'
statements regarding their motive for the discipline. See Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir.1995). A plaintiff may
meet this burden by presenting circumstantial evidence of a retaliatory motive, thus obviating the need for direct evidence.
See Bennett v. Goord, 343 F.3d 133, 139 (2d Cir.2003) (holding that the plaintiff met his burden to show retaliatory motive by
presenting circumstantial evidence relating to, among other things, the temporal proximity of the allegedly false misbehavior
reports and the subsequent reversal of the disciplinary charges on appeal as unfounded (citation omitted)). “ ‘Only retaliatory
conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights
constitutes an adverse action for a claim of retaliation.” ’ Davis v. Goord, 320 F.3d at 353 (quoting Dawes v. Walker, 239
F.3d at 493) (other citation omitted). “ ‘Otherwise the retaliatory act is simply de minimis and therefore outside the ambit of
constitutional protection.” ’ Id. (quotation omitted). Furthermore, in satisfying the causal connection requirement, also referred
to as temporal proximity, “the allegations must be “ ‘sufficient to support the inference “that the speech played a substantial
part” in the adverse action.” ’ Id. at 492 (quotation omitted).
*17 The plaintiff bears the initial burden to show that the defendants' actions were improperly motivated. In situations in
which the defendants' actions are the result of both retaliatory and legitimate reasons, the burden shifts to the defendants to
show that they would have taken the same action absent the retaliatory motive. See Graham v. Henderson, 89 F.3d 75, 79 (2d
Cir.1996) (citation omitted); Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994) (citations omitted); see also Gayle, 313 F.3d
at 682 (holding that the defendant may successfully meet this burden of justification with regard to a particular punishment by
demonstrating that the plaintiff “ ‘committed the most serious, if not all, of the prohibited conduct charged in the misbehavior
report” ’ (quotation and other citation)). Moreover, the Second Circuit has noted that retaliation claims are prone to abuse and
that, therefore, courts should examine such claims “with skepticism and particular care.” Colon, 58 F.3d at 872 (citation omitted);
Dawes, 239 F.3d at 491 (holding that “virtually any adverse action taken against a prisoner by a prison official-even those
otherwise not rising to the level of a constitutional violation-can be characterized as a constitutionally proscribed retaliatory
act.” (citation omitted)); see also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (quotation omitted).
Plaintiff claims that Defendants wrote four misbehavior reports against him, in which they charged him with harassment and/or
threats, in retaliation for his exercising his constitutional rights. Defendants Canning, Tousignant, Cromp, and Buffman authored
these four misbehavior reports on July 12, 2002, August 26, 2002, December 23, 2002, and December 24, 2002, respectively.
As explained more fully below, because Plaintiff has failed to meet his burden to show improper motives and because the record
demonstrates that Defendants issued all of these reports for valid reasons, the Court concludes that Plaintiff's retaliation claims
against these Defendants must fail.
Plaintiff asserts that on July 12, 2002, Defendant Canning wrote a retaliatory misbehavior report against him. The subject of
this misbehavior report was the threatening letter, marked as “legal mail,” that Plaintiff had written while he was confined
in SHU to an AAG. In a subsequent interview, Plaintiff admitted to Defendant Canning that he wrote that letter, prompting
Defendant Canning to charge him with violating prison rules 102.10 (threats in writing), 107.11 (inmates shall not harass any
person), and 180.11 (correspondence procedures). See Nepveu Decl., Exhibit “C,” at p. 16. Although it is dubious, given the
nature of the letter, whether the activity in which Plaintiff engaged could be classified as protected activity, were this Court to
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liberally construe this issue in Plaintiff's favor, he would still fail to meet his burden with respect to his retaliation claim against
Defendant Canning because he failed to present even a shred of evidence of improper motive on Defendant Canning's part.
Moreover, Defendant Canning has, under oath, denied any improper motive. See Canning Decl. at ¶¶ 5-6. Finally, the Court's
review of the letter leads to the inescapable conclusion that the tone and content of the letter is threatening and harassing; and,
thus, the Court concludes that Defendant Canning clearly had a proper motive to write the misbehavior report.
*18 Next, Plaintiff complains about a misbehavior report, dated August 26, 2002, that Defendant Tousignant authored. The
subject of this misbehavior report is the letter that Plaintiff wrote to Defendant Tousignant regarding Nurse Buffman, in which
Plaintiff referred to Nurse Buffman as an “ill-minded lesbian dyke of a deeply rooted perverted mentality” and a “KKK staff
member [who] hand masturbates SHU-inmates through the access door.” See Nepveu Decl., Exhibit “E,” at p. 6. Again, if the
Court liberally construes this claim to find that, in submitting a grievance to a supervisor, Plaintiff may have been engaged in
protected activity, he still fails to present any evidence of an improper motive. Under oath, Defendant Tousignant denied any
acrimonious motive in writing the report. See Dkt. No. 72, Tousignant Decl., at ¶¶ 16-17. Moreover, even if Plaintiff had shown
that Defendant Tousignant acted with an improper motive, his claim would still fail because, in light of the obvious harassing
and threatening tone of Plaintiff's letter, Defendant Tousignant appropriately issued a misbehavior report against him.
Plaintiff also challenges the misbehavior reports, dated December 23 and 24, 2002, that Defendants Cromp and Buffman
authored, respectively. Defendant Cromp's December 23, 2002 misbehavior report, much like those that the Court has already
addressed, arose out of a threatening and harassing grievance that Plaintiff wrote regarding Nurse Buffman, in which he called
Nurse Buffman a “despicable piece of trash” and an “unprofessional, ill-minded, and vindictive freak.” See Nepveu Decl.,
Exhibit “G,” at pp. 11-12. Although filing an institutional grievance is clearly protected activity, Plaintiff, yet again, fails to
allege that Defendant Cromp possessed any improper motive in authoring the report. Moreover, Defendant Cromp, under oath,
has denied any improper motive. See Dkt. No. 72, Cromp Decl., at ¶¶ 5-7. Furthermore, Plaintiff's grievance was docketed
and addressed at all levels; thus, Plaintiff was not in any way constrained nor encumbered in having this and other grievances
addressed. Lastly, with regard to Defendant Buffman's December 24, 2002 misbehavior report, on that date, Plaintiff told
Defendant Buffman, during sick call, that he needed prescriptions refilled. When she asked him which refills he needed, Plaintiff
refused to answer and became disrespectful and belligerent, called Defendant Buffman a “bitch,” told her to “drop dead,” and
threatened to kill her. See Nepveu Decl., Exhibit “H,” at p. 10; Buffman Decl. at ¶ 12. Under these circumstances, Defendant
Buffman was clearly justified in filing this misbehavior report against Plaintiff. See Dkt. No. 72, Buffman Decl., at ¶¶ 12-13.
Plaintiff's final retaliation claim is against Defendant Girdich for allegedly fabricating a state charge on October 30, 2002. In
his Declaration, Defendant Girdich denies bringing any state criminal charges against Plaintiff. See Dkt. No. 72, Girdich Decl.,
at ¶ 10. Since Plaintiff fails to expound on this claim, the Court finds that it is clearly without merit.
*19 In light of the fact that at least three of the misbehavior reports were in response to remarks that Plaintiff made in
writing with his signature affixed to such writings, the Court finds that these claims of retaliation are entirely without merit and
bordering upon harassment. Furthermore, Plaintiff's retaliation claim against Defendant Girdich is completely unsubstantiated
because Defendant Girdich never filed any state charges against Plaintiff. Accordingly, the Court concludes that Plaintiff has
failed to state retaliation claims against Defendants Canning, Tousignant, Cromp, Buffman and Girdich, and, therefore, grants
Defendants' motion for summary judgment with respect to these claims. Alternatively, the Court dismisses Plaintiff's retaliation
claims against Defendants Canning, Tousignant, Cromp, and Girdich as frivolous pursuant to 28 U.S.C. § 1915(g).
G. Eighth Amendment
Plaintiff alleges that Defendants committed numerous infractions that violated his Eighth Amendment right to be free from
cruel and unusual punishment. The crux of his claims centers around the conditions of his confinement in SHU as well as the
denial of medical care.
The Eighth Amendment prohibits the infliction of cruel and unusual punishment and is applicable to the states through the Due
Process Clause of the Fourteenth Amendment. See Trammell v. Keane, 338 F.3d 155, 161 (2d Cir.2003) (citation omitted). In
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this respect, the Eighth Amendment requires that prison officials provide prisoners with humane conditions of confinement
including “ ‘adequate ... medical care[.]” ’ Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and other citation omitted).
To prove a violation of the Eighth Amendment, an inmate must show (1) that the deprivation alleged is ‘objectively sufficiently
serious' such that the plaintiff was denied ‘the minimal civilized measure of life's necessities,’ and (2) that the defendant official
possessed a ‘sufficiently culpable state of mind’ associated with ‘the unnecessary and wanton infliction of pain.” ’ Trammell,
338 F.3d at 161 (citation omitted). Moreover, the Eighth Amendment prohibits punishments that are “grossly disproportionate
to the severity of the crime,” including unnecessary and wanton inflictions of pain which are “ ‘totally without penological
justification.” ’ Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quotation and other citations omitted); see also Hope v. Pelzer,
536 U.S. 730, 737 (2002) (citations omitted).
1. Prison Conditions
With regard to his complaints about prison conditions, Plaintiff asserts that the following Defendants subjected him to inhumane
conditions in violation of the Eighth Amendment:
(1) G. Kienert, on July 1, 2002, exhibited deliberate indifference when he subjected Chavis to illegal SHU confinement, and,
purportedly on September 5, 6, and 30, 2002, as well as October 25, 2002, Kienert ordered SHU officers to deny Chavis access
to hygenic items such as soap, shampoo, and nail clippers, and also directed the officers to tamper with his food trays, including
spitting on the food (Complaint at attached pp. 1-2);
*20 (2) A. Boucaud, on August 2, 2002, exhibited deliberate indifference when he fabricated and wrongfully extended Chavis's
confinement in SHU (Complaint at attached pp. 2-3);
(3) M. White, on unspecified dates in August, September, and October 2002, exhibited deliberate indifference when he spat
in Chavis's food and denied him access to various hygienic supplies resulting in Chavis's inability to shower for two months
(Complaint at attached pp. 5-6);
(4) Ms. Daggett, on July 1, 2002, exhibited deliberate indifference by subjecting Chavis to illegal SHU confinement (Complaint
at attached p. 7);
(5) J. Rock, on July 26, 2002, exhibited deliberate indifference when he commenced a Tier III Hearing in Chavis's absence and
subjected Chavis to further illegal SHU confinement (Complaint at attached p. 8);
(6) G. Canning, on July 13, 2002, authored a false misbehavior report which led to further illegal SHU confinement (Complaint
at attached p. 8);
(7) L. Friot, on July 1, 2002, exhibited deliberate indifference by continuing and subjecting Chavis to illegal SHU confinement
(Complaint at attached p. 9); and
(8) Lucien J. LeClaire, on July 1, 2002, allowed Chavis to be subjected to illegal SHU confinement (Complaint at attached p. 16).
The Supreme Court has held that “[t]he Constitution ‘does not mandate comfortable prisons,’ ... but neither does it permit
inhumane ones....” Farmer, 511 U.S. at 832 (internal quotation omitted). The prisoner “must show ‘extreme deprivations',
‘[b]ecause routine discomfort is “part of the penalty that criminal offenders pay for their offenses against society....” Sims v.
Artuz, 230 F.3d 14, 21 (2d Cir.2000) (quotation and other citation omitted); see also Blyden v. Mancusi, 186 F.3d 252, 263
(2d Cir.1999) (holding that, [b]ecause society does not expect or intend prison conditions to be comfortable, only extreme
deprivations are sufficient to sustain a “conditions-of-confinement” claim.” ’ (quotation omitted)).
To establish an Eighth Amendment claim based upon his conditions of confinement, an inmate must allege that the conditions
of his confinement have violated “ ‘contemporary standards of decency.” ’ Davidson v. Murray, 371 F.Supp.2d 361, 370
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(W.D.N.Y.2005) (quoting Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir.2002)). “To satisfy the objective element, the plaintiff
must demonstrate that the conditions of his confinement resulted in ‘unquestioned and serious deprivations of basic human
needs' or ‘deprive inmates of the minimal civilized measure of life's necessities.” ’ Davidson, 371 F.Supp.2d at 370 (quotation
and other citation omitted). “[T]he objective element is satisfied ‘only when the conditions have a mutually enforcing effect
that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise-for example, a low cell
temperature at night combined with a failure to issue blankets.” ’ Id. (quotation omitted). Allegations of “overall conditions”
will not rise to the level of cruel and unusual punishment without the existence of a “specific deprivation of a single human
need....” Wilson v. Seiter, 501 U.S. 294, 305 (1991). As to the subjective element, the requisite scienter is that of deliberate
indifference to the inmate's health or safety. See Farmer, 511 U.S. at 834.
*21 Initially, the Court notes that Plaintiff's “deliberate indifference” claims against Defendants Kienert, Daggett, Friot, and
LeClaire, stemming from his confinement in SHU on July 1, 2002, are without merit as the sole basis for these claims is the
alleged illegality of his confinement to SHU on that date, an issue this Court has already resolved in Defendants' favor. Likewise,
the Court has already addressed Plaintiff's claims against Defendants Boucaud (August 2, 2002 extension of SHU confinement),
Rock (July 26, 2002 improper hearing subjecting Chavis to illegal SHU confinement), and Canning (July 12, 2002 misbehavior
report leading to illegal SHU confinement) and concluded that they lack merit. Thus, Plaintiff's only remaining conditions-
of-confinement those based upon his allegations against Defendants Kienert for allegedly ordering SHU officers to deny him
hygienic materials and tamper with his food and against Defendant White for carrying out those orders.
The Eighth Amendment does require that prison officials serve prisoners “ ‘nutritionally adequate food that is prepared and
served under conditions which do not present an immediate danger to the health and well being of the inmates who consume
it.” ’ Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983) (quoting Ramos v. Lamm, 639 F.2d 559, 571 (10th Cir.1980)); see also
Wilson, 501 U.S. at 303 (prisoners are guaranteed a nutritionally adequate diet). Moreover, although courts in this Circuit have
found claims of unsanitary, spoiled, or contaminated foods to be sufficient to sustain an Eighth Amendment claim, see Robles,
725 F.2d at 15-16 (citing cases), Plaintiff's allegations that Defendants spit in his food and “violat[ed][his] bread by making
holes in it” are wholly conclusory and unsubstantiated.
Plaintiff also claims the Defendants denied him various toiletry/hygienic items and that these denials “prohibited” him from
showering “for a near ‘two’ month time period.” See Complaint at attached p. 6. The Court does not understand how the
deprivation of such items would lead to the deprivation of showers; what is more probable, however, is that Defendants provided
Plaintiff with opportunities to shower, but without shampoo and soap. Defendant White's Declaration adequately supports this
possibility; he explains that the SHU showers occur in the inmate's cell and a single switch turns on the water in an entire side for
twenty-minutes and that it is not possible to control the shower in a single cell. See White Decl. at ¶ 9. Given these facts, which
Plaintiff does not dispute, the Court concludes that it is incredulous for Plaintiff to assert that Defendant White, on Defendant
Kienert's orders, denied him access to showers for a two-month period.
Further, Plaintiff has failed to show that the alleged denial of toiletries rose to the level of deliberate indifference to his health
or safety. Courts, including the Second Circuit, have generally held that temporary deprivations of toiletries do not violate the
Eighth Amendment. See Trammell, 338 F.3d at 165 (holding that “[d]eprivation of other toiletries for approximately two weeks-
while perhaps uncomfortable-does not pose such an obvious risk to an inmate's health or safety to suggest that the defendants
were ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and [that they also
drew] the inference.” ’ (quoting Farmer, 511 U.S. at 837, 114 S.Ct.1970)). Accordingly, the Court dismisses all of Plaintiff's
Eighth Amendment claims regarding the conditions of his confinement as frivolous under 28 U.S.C. § 1915(g).
2. Medical-indifference Claims
*22 Plaintiff asserts that the following Defendants denied him access to medical care in violation of the Eighth Amendment:
(1) A. Tousignant, on July 28, 2002, denied proper medical care and further denied twenty-six (26) “medical food trays” to Chavis
that were required due to his seafood allergies, resulting in loss of twenty (20) pounds over a three-month period (Complaint
at attached pp. 10-11);
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(2) Ms. Buffman, on July 10, 2002, denied Chavis emergency treatment and denied access to a doctor for treatment of serious
allergic reaction and worked in concert with Tousignant in denying Chavis his medical food trays (Complaint at attached pp.
10-11);
(3) P. Johnston, PA, on December 17, 2002, denied Chavis access to medical care for severe to mild medical conditions and
failed to refill prescriptions. Also, on December 24 and 27, 2002, Johnston failed to provide medical care to Chavis during
allergic reactions (Complaint at attached p. 12);
(4) J. Cromp, on December 24, 2002, exhibited deliberate indifference when he concealed a valid grievance regarding Nurse
Buffman's medical violations and thus sanctioned the medical violations (Complaint at attached p. 13);
(5) L.N. Wright, Chief Medical Officer, on unspecified dates in August and December 2002, repeatedly ignored Chavis's letters
regarding medical complaints (Complaint at attached p. 13);
(6) R. Donaldson, from July 10, 2002, to the date of the Complaint, failed to file Chavis's grievances against medical staff
regarding medical care thus allowing the violations to continue (Complaint at attached p. 14);
(7) M. Yaddow, CO SHU, on December 27, 2002, removed Chavis's request slip for medical care thus preventing access to
adequate care (Complaint at attached p. 15); and
(8) Richard D. Roy, on March 26, 2002, ignored Chavis's letters regarding medical care (Complaint at attached pp. 16-17).
To state an Eighth Amendment claim based upon the denial of medical care, a prisoner must demonstrate (1) a serious medical
condition and (2) the defendants' deliberate indifference to that serious medical need. See Farmer, 511 U.S. at 834-35 (citations
omitted); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (citation omitted). With respect to the “deliberate indifference”
prong of this claim, “the plaintiff must allege conduct that is ‘repugnant to the conscience of mankind’ or ‘incompatible with the
evolving standards of decency that mark the progress of a maturing society.” ” ’ Ross v. Kelly, 784 F.Supp. 35, 44 (W.D.N.Y.),
aff'd, 970 F.2d 896 (2d Cir.1992) (quoting [Estelle v. Gamble, 429 U.S. 97,] 102, 105-06, 97 S.Ct. at 290, 291-92).
The first prong is an objective standard and considers whether the medical condition is sufficiently serious. The Second Circuit
has stated that a medical need is serious if it presents “ ‘a condition of urgency’ that may result in ‘degeneration’ or ‘extreme
pain.” ’ Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quotation omitted). Among the relevant factors that a court
should consider in making this determination are “ ‘[t]he existence of an injury that a reasonable doctor or patient would find
important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's
daily activities; or the existence of chronic and substantial pain.” ’ Id. (quotation and other citation omitted).
*23 The second prong is a subjective standard requiring a plaintiff to demonstrate that the defendant acted with the requisite
culpable mental state similar to that of criminal recklessness. Wilson, 501 U.S. at 301-03; Hathaway, 37 F.3d at 66. A plaintiff
also must demonstrate that the defendant acted with reckless disregard to a known substantial risk of harm. See Farmer, 511
U.S. at 836. This requires “something more than mere negligence ... [but] something less than acts or omissions for the very
purpose of causing harm or with knowledge that harm will result.” Id.; see also Weyant v. Okst, 101 F.3d 845, 856 (2d Cir.1996)
(citation omitted). Further, a showing of medical malpractice is insufficient to support an Eighth Amendment claim unless
“the malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison doctor that evinces ‘a conscious
disregard of a substantial risk of serious harm.” ’ Chance, 143 F.3d at 703 (quoting Hathaway v. Coughlin, 99 F.3d 550, 553
(2d Cir.1996)); see also Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003) (quotation omitted).
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With respect to his claims against Defendants Wright and Roy, the Court finds that Plaintiff has failed to allege any personal
involvement of these Defendants in any constitutional violation and therefore dismisses all Eighth Amendment claims, in
addition to the other claims that the Court has dismissed, against these Defendants for the same reasons that the Court dismissed
the due process claims against Defendant Roy. See supra Part III.D.1. In addition, with respect to Plaintiff's claim against
Defendant Cromp, the Court finds that the record clearly belies Plaintiff's claim that Defendant Cromp concealed his grievance
against Nurse Buffman because all three administrative levels addressed that particular grievance. The same is true of Plaintiff's
allegations against Defendant Donaldson for concealing grievances that Plaintiff filed against medical staff, because, as the
record indicates, Plaintiff did file such grievances, which were similarly addressed at all administrative levels. Lastly, with
respect to his claim against Defendant Yaddow, Plaintiff asserts that Defendant Yaddow denied him access to medical care
by removing his request slip on December 27, 2002. However, according to facility records, on that date, Defendant Yaddow
worked from 3 p.m. to 11 p.m. in the C Gallery of Building 9, while Plaintiff was housed in the B Gallery of Building 9. See Dkt.
No. 72, Yaddow Decl., at ¶¶ 3-4. Obviously, Defendant Yaddow would have had no occasion, nor arguably any opportunity,
to conceal or remove any request slip if he was not even in the vicinity of Plaintiff on that date. Thus, the Court dismisses
Plaintiff's Eighth Amendment medical-indifference claims against Defendants Cromp, Donaldson, and Yaddow as frivolous
pursuant to 28 U.S.C. § 1915(g).
Plaintiff's remaining Eighth Amendment medical-indifference claims are against Defendants Tousignant, Buffman, and
Johnston. With regard to these claims, Plaintiff alleges that he suffered from “mild” or “mild to near serious” hive attacks and
scalp bleeding. See Complaint at attached pp. 10-12. Such conditions are not sufficiently serious that they would produce death,
degradation, or extreme pain. See Chance, 143 F.3d at 702. Therefore, with respect to these allegations, the Court finds that
Plaintiff cannot satisfy the objective prong of his medical-indifference claim. Moreover, even if this Court were to find that
Plaintiff's condition was sufficiently serious, because food allergies can in some cases become life-threatening, his claim would
still fail because he has not come forward with any evidence that any of the above-named Defendants acted with deliberate
indifference to these serious needs. In fact, Plaintiff's health record reveals that medical staff frequently saw him and that he
often would request medical services and yet fail to appear because he was asleep at the designated time. See Nepveu Decl.,
Exhibit “K,” at p. 19; Buffman Decl., at ¶ 10; see also supra Part II (noting that medical staff saw Plaintiff an average of fourteen
times per month and further listing the multiple instances when Plaintiff was asleep during the requested/scheduled sick call
times and/or was belligerent and uncooperative with medical staff). The health record also contradicts Plaintiff's contention that
Defendant Johnston failed to refill his prescriptions. See Nepveu Decl., Exhibit “K,” at p. 20. In light of the fact that Plaintiff has
failed to allege a sufficiently serious medical condition, coupled with the fact that the record clearly indicates that Defendants
did not act with a sufficiently culpable state of mind, the Court grants Defendants' motion for summary judgment with regard
to all of Plaintiff's Eighth Amendment medical-indifference claims.
*24 Plaintiff's remaining Eighth Amendment claims relate to his allegations that Defendants Tousignant and Buffman denied,
or perhaps delayed, his medical food trays. Essentially, Plaintiff complains that he did not receive a Therapeutic Diet Request
Form ordering a no-fish diet. In certain circumstances, the denial of a medically-prescribed diet may constitute an Eighth
Amendment violation. See Abdush-Shahid v. Coughlin, 933 F.Supp. 168, 180 (N.D.N.Y.1996) (citations omitted). But cf. Ramsey
v. Coughlin, 1 F.Supp.2d 198, 205 (W.D.N.Y.1998) (holding that, under the particular circumstances of that case, the inmate was
not constitutionally entitled to vegetarian diet). Furthermore, a delay in medical treatment does not necessarily invoke the Eighth
Amendment. “Although a delay in providing necessary medical care may in some cases constitute deliberate indifference, ...
such a classification [is reserved] for cases in which, for example, officials deliberately delayed care as a form of punishment;
ignored a life-threatening and fast-degenerating' condition for three days; or delayed major surgery for over two years.” Freeman
v. Strack, 2000 WL 1459782, *6 (S.D.N.Y. Sep. 29, 2000) (citations omitted). Only when the official “knows of and disregards
an excessive risk to inmate health or safety” will a court find that that official was deliberately indifferent. Hathaway, 99 F.3d at
553. In this case, the record indicates that neither Defendant Tousignant nor Defendant Buffman was responsible for filling out
such a form or that either of them was even aware of the delay, if such occurred. See Tousignant Decl. at ¶¶ 9-10; Buffman Decl .,
at ¶¶ 16-18; Nepveu Decl., Exhibit “K,” at pp. 48-53; Exhibit “M,” July 28, 2002 Memo from Tousignant. Even more telling is
that fact that, from July 1, 2002, the date on which Plaintiff was transferred to Upstate Correctional Facility, through October 22,
2002, the date on which the Therapeutic Diet Form was executed, the medical staff saw Plaintiff twenty-five times and not once
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did he raise this issue with the staff. See Tousignant Decl. at ¶ 7; Nepveu Decl., Exhibit “K.” Based upon this record, the Court
finds that any temporary delay on the part of Defendants in providing Plaintiff with a no-fish diet was not a serious medical
need, and in any case, Defendants did not know of and disregard this delay. Accordingly, the Court grants Defendants' motion
for summary judgment with respect to Plaintiff's Eighth Amendment claims against Defendants Tousignant and Buffman.
H. Sanctions
In his opposition, Plaintiff asserts that, by serving a summary judgment motion in lieu of an answer for Defendant Kienert,
AAG Nepveu has violated a court discovery order; and, therefore, the Court should sanction her. See Dkt. No. 75 at pp. 2-14.
Magistrate Judge Treece issued the relevant discovery order on October 25, 2004. See Dkt. No. 65. In ruling on Plaintiff's
motion to compel discovery, Magistrate Judge Treece concluded that, because at that time Plaintiff had not yet served Defendant
Kienert with process, he could serve a set of interrogatories on Defendant Kienert thirty days after a response to the complaint
was filed on behalf of Defendant Kienert. See id. at p. 4. Plaintiff served Defendant Kienert on November 8, 2004. See Dkt. No.
68. On November 2, 2004, in response to AAG Nepveu's request, Magistrate Judge Treece set Defendant Kienert's response
deadline for December 31, 2004, and extended the motion-filing deadline for all other Defendants to the same date. See Dkt.
Nos. 66-70. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a defendant may move for summary judgment “at any
time.” Fed.R.Civ.P. 56. Thus, AAG Nepveu asserts that she acted in good faith and with the understanding that no outstanding
discovery order was in place and that summary judgment was an appropriate response to the complaint on behalf of Defendant
Kienert.
*25 Rule 37(d) of the Federal Rules of Civil Procedure authorizes a court to impose sanctions for a party's failure “to serve
answers or objections to interrogatories ... after proper service of the interrogatories,” and further authorizes a court to “make
such orders in regard to the failure as are just.” Fed.R.Civ.P. 37(d). Under the circumstances of this case, the Court finds that
sanctions against AAG Nepveu are not warranted; therefore, the Court denies Plaintiff's request for sanctions.
III. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the applicable law, and for the reasons
stated herein, the Court hereby
ORDERS that Defendants' motion for summary judgment is GRANTED in its entirety; and the Court further
ORDERS that Plaintiff's due process claims against Defendants Kienert, Boucaud, Girdich, Donelli, Daggett, Friot, Selsky,
Roy, and LeClaire, based upon Plaintiff's allegations regarding his admission to SHU on July 1, 2002, are DISMISSED AS
FRIVOLOUS pursuant to 28 U.S.C. § 1915(g); and the Court further
ORDERS that Plaintiff's due process claims against Defendants Rock, Daggett, and Canning are DISMISSED WITHOUT
PREJUDICE; and the Court further
ORDERS that Plaintiff's First and Fourteenth Amendment claims against Defendants Kienert, Girdich, Dumas, White, Donovan,
Canning, Donaldson and Roy, based upon his allegations that Defendants denied him access to the courts, are DISMISSED AS
FRIVOLOUS pursuant to 28 U.S.C. § 1915(g); and the Court further
ORDERS that Plaintiff's retaliation claims against Defendants Canning, Tousignant, Cromp, and Girdich are DISMISSED AS
FRIVOLOUS pursuant to 28 U.S.C. § 1915(g); and the Court further
ORDERS that Plaintiff's Eighth Amendment claims regarding the conditions of his confinement are DISMISSED AS
FRIVOLOUS pursuant to 28 U.S.C. § 1915(g); and the Court further
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ORDERS that Plaintiff's Eighth Amendment medical-indifference claims against Defendants Cromp, Donaldson, and Yaddow
are DISMISSED AS FRIVOLOUS pursuant to 28 U.S.C. § 1915(g); and the Court further
ORDERS that Plaintiff's request for sanctions is DENIED; and the Court further
ORDERS that the Clerk of the Court enter judgment in favor of Defendants and close this case.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2005 WL 2452150
Footnotes
1 In his complaint, Plaintiff incorrectly refers to Defendant “Johnston” as “Johnson.” The Court will refer to this Defendant
as “Johnston.” Furthermore, although Plaintiff refers to this Defendant as a Doctor, according to Defendant Johnston's
Declaration, which Defendants submitted in support of their motion for summary judgment, Defendant Johnston is a
Physician's Assistant. See Dkt. No. 72, P. Johnston Decl., at ¶ 1. Plaintiff also incorrectly refers to Defendant “Yaddow”
as “Yuddow;” the Court will refer to this Defendant as Yaddow.
2 At the outset, the Court notes that Plaintiff's opposition papers substantially fail to comply with this District's Local
Rules in that Plaintiff (1) failed to include a Statement of Material Facts, (2) included legal arguments in his Affidavit,
and (3) submitted a legal memorandum, which, at sixty pages, far exceeds the twenty-five page limit. See L.R. 7.1(a).
Although the Court could have rejected Plaintiff's papers as non-compliant, in light of his pro se status, the Court accepts
his filings. However, the Court will construe Plaintiff's voluminous response to Defendants' motion, entitled “Affidavit
in Testimony,” see Dkt. No. 75, as a Memorandum of Law in Opposition because this District's Local Rules preclude
an affidavit from including legal arguments. See L.R. 7.1(a)(2). There is no prejudice to Plaintiff as a result of the
Court's recharacterization of his papers because his verified complaint may serve as an affidavit for summary judgment
purposes. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) (citing cases and treatises supporting the proposition
that a verified complaint may serve as an affidavit for Rule 56 purposes provided the complaint “contains facts known
to be true in the affiant's own knowledge and if it has a certain level of factual specificity”).
3 The Court derives the facts from Defendants' Statement of Material Facts, which they submitted in accordance with L.R.
7.1 and which Plaintiff has not specifically countered or opposed and which the record amply supports. See L.R. 7.1(a)
(3) (“Any facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted
by the opposing party.” ).
4 In submitting Exhibits in support of Defendants' motion for summary judgment, Defendants' counsel renumbered the
pages of all of the Exhibits. For ease of reference, the Court will refer to the relevant Exhibits using their renumbered
designations.
5 Plaintiff's disciplinary history since his admission to the custody of New York's Department of Correctional Services
(“DOCS”) is rather lengthy. Some examples of Plaintiff's vast disciplinary history include the following:
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(1) from 1993 to 1996, while housed at Clinton Correctional Facility, Plaintiff was found guilty of various prison rule
violations at eight separate disciplinary hearings (two Tier III and six Tier II);
(2) from 1997 to 1998, while housed at Attica Correctional Facility, Plaintiff was found guilty at five separate disciplinary
hearings (one Tier III and four Tier II);
(3) from 1998 to 2000, while housed at Wende, Orleans, and Southport Correctional Facilities, Plaintiff was found guilty
at five separate disciplinary hearings (two Tier III and three Tier II);
(4) in 2000, while housed at Coxsackie Correctional Facility, Plaintiff was found guilty at six separate disciplinary
hearings (four Tier III and two Tier II);
(5) from 2000 to 2002, while housed at Southport Correctional Facility, Plaintiff was found guilty at nine separate
disciplinary hearings (two Tier III and seven Tier II); and
(6) from July through December 2002, while housed at Upstate Correctional Facility, and the focus of some of Plaintiff's
claims herein, Plaintiff was found guilty at six separate disciplinary hearings (three Tier III and three Tier II).
See Nepveu Decl., Exhibit “B.”
6 The report further noted that, although Plaintiff had never been referred to a mental health unit, he had a psychiatric
history, including a history of violence. See Nepveu Decl., Exhibit “K,” at p. 49.
7 Branch is not a Defendant in this action.
8 Defendants' 7.1 Statement incorrectly states that Defendant Canning's misbehavior report is dated August 26, 2002.
Compare Defendants' 7.1 Statement at ¶ 8 with Nepveu Decl., Exhibit “C,” at p. 16.
9 Defendant Rock found Plaintiff not guilty of violating facility correspondence rules because his letter was addressed to
the Attorney General's Office and some of its content was legal in nature. See Nepveu Decl., Exhibit “C,” at p. 2.
10 According to Plaintiff's Inmate Disciplinary History, the service dates for this disposition commenced on July 26, 2002,
and ended on July 26, 2003. See Nepveu Decl., Exhibit “B,” at p. 1. The parties have not submitted any reason for the
discrepancy in service dates.
11 The service dates for these dispositions were from July 26, 2003, through June 24, 2004. See Nepveu Decl. at Exhibit
“B.”
12 Plaintiff actually submitted two seemingly identical grievances against Defendant Buffman, one dated December 15,
2002, and the other dated December 16, 2002; it appears that both grievances were accepted and consolidated with
another grievance regarding access to medical care. See Nepveu Decl., Exhibit “J,” Consolidated Inmate Grievances,
at pp. 4 & 14.
13 Lieutenant Quinn is not a Defendant in this action.
14 The sentences were set to commence on March 1, 2005. See Nepveu Decl. at Exhibit “B.”
15 On September 30, 2002, there is a notation in the medical record of “No Fish-No Seafood,” although it is unclear whether
Plaintiff lodged an actual complaint because no further directions follow the notation. See Nepveu Decl., Exhibit “K,”
at p. 32.
16 Since Plaintiff failed to number all of the paragraphs in his complaint, the Court will make reference to the attached page
number. Furthermore, in accordance with the standard of review, the Court has liberally construed Plaintiff's claims to
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raise the strongest arguments they present. Given the nature and volume of asserted claims, the Court notes that this
liberal construction inevitably results in multiple overlapping of claims.
17 The Court dismisses Plaintiff's claims without prejudice because such claims would accrue in the event that his sentence
is overturned. Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir.1999) (holding that “disposition of [a] case on Heck grounds ...
warrants only dismissal without prejudice, because the suit may be reinstituted” in the event the plaintiff's conviction
is overturned (citations omitted)).
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Gadson v. Goord, Not Reported in F.Supp. (1997)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Rodriguez v. McClenning, S.D.N.Y., April 22, 2005
1997 WL 714878
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Anthony GADSON, Plaintiff,
v.
Glenn S. GOORD, Philip Coombe, Artuz, L. Zwillinger, D. Stevens, J. Manion, G.
Schneider, D. Connelly, B. Pease, C.O. Rassman, D. Zaken, C. Bennett, Defendants.
No. 96 Civ. 7544(SS).
|
Nov. 17, 1997.
Anthony Gadson, pro se, Terrace Health Care Center, Bronx, NY, for plaintiff.
Dennis C. Vacco, Attorney General of the State of New York New York, NY, of counsel: Constantine A. Speres, Assistant
Attorney General, for defendants.
OPINION AND ORDER
SOTOMAYOR, J.
*1 Pro se plaintiff, Anthony Gadson, formerly incarcerated at Green Haven Correctional Facility, brings this 42 U.S.C. §
1983 action, alleging that defendants violated his constitutional rights by (1) failing to provide him with an appropriate and
medically necessary wheelchair; (2) harassing him; and (3) failing to return plaintiff's property. The twelve named defendants
are or were Department of Correctional Services administrators and Green Haven security or medical staff. 1 Plaintiff seeks an
order from the Court directing defendants to: (1) provide plaintiff with proper medical care (e.g., an appropriate wheelchair)
and a proper living environment; and (2) stop mistreating plaintiff. Additionally, plaintiff seeks compensatory damages and
punitive damages.
Defendants move to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. For the reasons
discussed, defendants' motion to dismiss is granted in part and denied in part.
BACKGROUND 2
Plaintiff is currently on parole status living at the Kings Terrace Nursing Home in Bronx, New York. During the events in
question, plaintiff was incarcerated at Green Haven Correctional Facility (“Green Haven”) located in Stormville, New York.
Plaintiff alleges that he is paralyzed and requires a customized “medical wheelchair.” (Complaint ¶¶ 1,7.) Plaintiff claims that
on January 28, 1994, prior to his transfer to Green Haven from another correctional facility, he was “medically fitted” for a
wheelchair by a physical therapist at Helen Hayes Hospital. (Complaint ¶ 1; Exhibit (“Ex.”) A to Complaint.) 3 For reasons not
explained, plaintiff received a second evaluation for a wheelchair by a physical therapist employed at Green Haven on March
9, 1994. (Complaint ¶ 2.) Unlike the original wheelchair prescribed at Helen Hayes, this second wheelchair recommendation,
according to plaintiff, was “not for my Physical Condition.” (Complaint ¶ 2; Ex. B.)
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On July 26, 1994, plaintiff claims he received a “defective wheelchair” from the Green Haven Physical Therapy Department.
(Complaint ¶ 3; Ex. C–3.) He alleges that unlike the chair recommended by Helen Hayes, the delivered wheelchair was not
fitted with a self-recliner nor was it suitable for plaintiff's weight or legs. (Ex. C–1; C–3.) Plaintiff maintains that he rejected
the chair because it lacked these medically necessary features. (Complaint ¶ 1; Ex. C–3.)
On September 7, 1994, plaintiff filed a grievance against Green Haven personnel complaining that he was in a “great deal
of pain” and seeking an “adequate heavy duty wheelchair equipped with self-recliner for his proper medical treatment.” (Ex.
C–1.) On December 14, 1994, the Central Office Review Committee for the State of New York Inmate Grievance Program
(“C.O.R.C.”) unanimously approved plaintiff's request and indicated that a new reclining wheelchair, “as prescribed,” was then
on order. (Ex. C–4.)
*2 Plaintiff received a second wheelchair on or about March 15, 1995. (Ex. D–1.) Plaintiff deemed this second wheelchair
also “improper” and refused to accept it. Id. Specifically, plaintiff claimed the second wheelchair was improper because: (1) the
reclining handles were not within his reach; (2) the adjustable foot pieces were not accessible; (3) the leg rests were not “swing
detachable;” (4) the brakes had no extensions and were hard to reach; and (5) that without a buckle, the seat belt was not strong
enough. (Ex. D–1.) On March 20, 1995, Plaintiff filed a second grievance, again requesting a “proper made wheelchair” for
his medical condition. (Ex. D–1.) This second grievance further requested that prison officials “stop causing me more pain and
suffering by having me lie in bed for over a year.” Id.
The C.O.R.C. denied plaintiff's second grievance on June 14, 1995, concluding that an “investigation reveals that the wheelchair
in question was a custom made reclining wheelchair. The wheelchair was recommended and ordered by the physical therapy
department and meets the medical needs of grievant per physical therapy.” (Ex. D–4 .) The C.O.R.C. based its determination
on statements and an investigation by defendant Zwillinger, the Green Haven Regional Health Services Administrator. Id.
Plaintiff filed a third grievance requesting a wheelchair in August 1995 and again on October 18, 1995. 4 (Complaint ¶ 5; Ex.
E–1.) Plaintiff notes that by this time he had been waiting almost two years for a special made wheelchair for my medical
condition.” (Complaint ¶ 5.) His grievance states that “it appears that the medical department has determine [sic] that they are
not going to order me a wheelchair at all for my medical condition.” (Ex. E–1 .) Eight days after filing the grievance, plaintiff
was transferred to another correctional facility. (Ex. E–3.) Thereafter, on January 17, 1996, the C.O.R.C. denied plaintiff's third
grievance, reiterating its previous finding that a proper wheelchair had been ordered which plaintiff had refused and suggesting
that plaintiff “address the issue of his wheelchair with the health staff at his new facility.” (Complaint ¶ 5; Ex. E–3.)
Plaintiff claims that as a result of Green Haven's failure to provide him with an appropriate wheelchair, he spent two and a
half years “bed-ridden, in constant pain, feet degenerations, and emotional distress. (Opp'n Mem. ¶ 10; Ex. D–1.) Plaintiff
further claims that the Green Haven Medical Department “play[ed] word games” with his grievances and attempted to deprive
him of a proper wheelchair by using the second chair recommendation which was “wrong ... from the start.” (Complaint ¶ 5.)
Plaintiff insists he cannot use any wheelchair other than the “self recliner” chair he requested and which the C.O.R.C. approved
in response to his first grievance. (Ex. K–1.) Finally, plaintiff contends that defendants “deliberately after knowing that the first
wheelchair was not for Plaintiff medical condition kept on ordering the same type of wheelchair repeatedly knowing that the
Plaintiff would not accept it do [sic] to the time it takes to get a wheelchair for his medical condition.” (Opp'n Mem. ¶ 10.)
The Retaliation Claims
*3 Plaintiff further alleges that while waiting for a proper wheelchair, he experienced “a great deal of harassment” by Green
Haven prison officials. See (Complaint ¶¶ 7–9.) Specifically, plaintiff alleges: (1) that defendant Connelly ordered the “illegal”
search of his cell, during which time his medical and legal documents were taken from him and not returned (Complaint ¶¶ 7 &
8; Ex. G–1–G–4 & I–1–I–4); (2) that defendants Pease, Zaken, and Bennett created false misbehavior reports to keep him “on
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some kind of restriction” or keeplock “24 hours a day” (Complaint ¶ 7; Opp'n Mem. ¶ 17); (3) that defendant Rassman, under
the direction of defendant Pease, harassed him by preventing other inmates from socializing with plaintiff while on keeplock
(Complaint ¶ 9; Ex. K–2); and (4) that defendants transferred him to another correctional facility on October 26, 1995, to
“further delay my getting a wheelchair ... and to prolong my stay in prison.” (Complaint ¶ 10, Ex. E–2). Although plaintiff
has not directly alleged that these acts of harassment were committed in retaliation for his filing of grievances, his pleadings
suggest this to be his claim. 5
Defendants have filed a motion to dismiss urging dismissal of the Complaint in its entirety for failure to state a claim. In
particular, defendants contend that: (1) plaintiff has pled insufficient facts to support a claim of deliberate indifference to his
medical needs; (2) plaintiff's claim of deprivation of property is not actionable in federal court and plaintiff does not allege any
facts to demonstrate actual deprivation of access to court; (3) as against defendants Goord, Coombe, Artuz, Schneider, Zaken
and Bennett, the claims must be dismissed because these defendants had no personal involvement or supervisory liability for
the alleged constitutional deprivations; (4) the Eleventh Amendment protects defendants from suit in their official capacities;
and (5) plaintiff's prayer for injunctive relief is moot because he is no longer incarcerated at Green Haven.
In response to defendants' motion, plaintiff provided supplemental facts addressing, inter alia, his claim of deliberate
indifference and the personal involvement of defendant's Zaken and Bennett. For the reasons addressed in note 2, supra, the
Court will consider these factual allegations in evaluating defendants' motion.
DISCUSSION
I. Mootness
Because plaintiff is no longer incarcerated and under the supervision of any of the named defendants, the Court rejects plaintiff's
request for injunctive relief “directing defendants to provide medical care,” “preventing defendants from mistreating pltf [sic]”,
and “directing defendant's [sic] to provide proper living environment for pltf.” (Complaint at 5.) Plaintiff's claims for injunctive
relief are moot and the Court lacks jurisdiction to consider them. See Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 104
S.Ct. 373, 78 L.Ed.2d 58 (1983); see generally Courts v. Coombe, 95 Civ. 2350(DC), 1996 WL 312357, at 2 (S.D.N.Y. June
11, 1996) (citing Armstrong v. Ward, 529 F.2d 1132, 1135 (2d Cir.1976)) (“The mere possibility that [plaintiff] may be returned
to [the correctional facility where the incidents at issue arose] at some point in the future does not present a sufficient case or
controversy that the court can presently adjudicate.”). Accordingly, the Court reviews plaintiff's claims only to the extent they
seek compensatory and punitive damages.
II. Motion to Dismiss Standard
*4 In considering defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must “assess the legal feasibility of the
Complaint,” Smith v. O'Connor, 901 F.Supp. 644, 646 (S.D.N.Y.1994), accepting as true the factual allegations in the Complaint
and construing all reasonable inferences in plaintiff's favor. See generally Leatherman v. Tarrant County Narcotics Intelligence
& Coord. Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d
Cir.1994). The Court may properly dismiss a claim only if, after viewing all allegations in the light most favorable to the
plaintiff, it determines “beyond doubt that the plaintiff can prove no set of facts in support of [plaintiff's] claims which would
entitle [plaintiff] to relief.” Hernandez, 18 F.3d at 136 (quoting Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d
80 (1957)). Moreover, where a plaintiff proceeds pro se, as here, the Court must “ ‘read his [or her] supporting papers liberally,
and ... interpret them to raise the strongest arguments that they suggest.’ “ Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995) (quoting
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)); Hernandez, 18 F.3d at 136. In so doing, the Court must hold plaintiff to a
pleading standard which is “less stringent ... than formal pleadings drafted by lawyers.” Haines v. Kemer, 404 U.S. 519, 520–
21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curium).
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III. Liability Under 42 U.S.C. § 1983
In a § 1983 action, the plaintiff must establish that a person acting under color of state law deprived him or her of a federal
constitutional right. 42 U.S.C. § 1983; Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Sykes v.
James, 13 F.3d 515, 519 (2d Cir.1993). Section 1983 does not create any federal rights on its own, but rather enforces rights
established under the Constitution, laws, or treaties of the United States. Sykes, 13 F.3d at 519.
Nowhere in his Complaint does plaintiff specifically allege constitutional violations, however, liberally construed, plaintiff
claims that defendants denied him adequate medical care in violation of the Eighth Amendment and retaliated against him
for filing grievances in violation of the First Amendment. Furthermore, plaintiff's claim that defendants deprived him of his
property may be construed as alleging a violation of the Fourteenth Amendment.
IV. Plaintiff's Eighth Amendment Claim
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments” on prisoners. In Estelle v. Gamble, the
Supreme Court held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton
infliction of pain,’ ... proscribed by the Eight Amendment.” 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting
Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), reh'g denied, 429 U.S. 1066 (1977)). To state a
claim of deliberate indifference, plaintiff must show that prison officials intentionally denied, delayed access to, or interfered
with prescribed treatment. Estelle, 429 U.S. at 104–05. The inadvertent or negligent failure to provide adequate medical care
does not rise to the level of deliberate indifference. Id. at 105.
*5 To sustain a claim of deliberate indifference to medical needs, plaintiff must plead facts sufficient to satisfy both the
objective and subjective components of the applicable standard, i.e., that the alleged deprivation was sufficiently serious and
that the prison officials acted with a sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 834–35, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994); see also Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (“Deliberate
indifference to medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’ ”) (citing Estelle,
429 U.S. at 103–104); Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (an Eighth Amendment
claim requires “inquiry into a prison official's state of mind when it is claimed that the official has inflicted cruel and unusual
punishment”).
Accepting the accuracy of plaintiff's allegations for purposes of defendants' motion to dismiss, the Court can not conclude that
plaintiff can show no set of facts sufficient to meet the deliberate indifference standard in this case. Plaintiff asserts he suffered
serious injury because of the delays in his receiving a proper wheelchair, e.g., that he was forced to remain bed-ridden and
suffered “a great deal of pain,” as well as “feet degenerations, and emotional distress” for a period of two and a half years.
(Opp'n Mem. ¶ 10; Ex. D–1 & C–1.) Moreover, he alleges that defendants intentionally failed to provide him with an appropriate
wheelchair despite his frequent notification to the Green Haven medical staff that he was in pain, his three grievances requesting
a proper wheelchair, and the C.O.R.C.'s unanimous determination in response to his first grievance that plaintiff was entitled to
a self-reclining wheelchair. Certainly, plaintiff's refusal to accept the second wheelchair offered to him, which purportedly was
self-reclining, casts doubt on plaintiff's claim that defendants were purposely indifferent. 6 However, at this early pleading stage,
without the benefit of any information on the nature of plaintiff's actual medical condition or the medical appropriateness of
the wheelchairs offered to plaintiff, this Court can not conclusively say that plaintiff's Complaint fails to allege that he suffered
serious injury from lack of a wheelchair. Nor can the Court, at this point, reject plaintiff's claim that defendants acted with a
culpable state of mind by their intentional delay in providing him with a wheelchair customized to his particular medical needs.
Significantly, the Second Circuit has repeatedly held that allegations of delay in providing medical treatment to a prisoner,
even in the absence of physical pain, can state a claim for deliberate indifference sufficient to survive a motion to dismiss.
See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (“Hathaway II”) (allegations that prison doctor delayed prisoner's
surgery for over two years although he knew prisoner had two broken pins in his hip, was sufficient to meet both components
of deliberate indifference claim and to withstand a motion to dismiss); Archer v. Dutcher, 733 F.2d 14, 16 (2d Cir.1984) (if
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prison officials did delay “medical aid—even for ‘only’ five hours—in order to make [the prisoner] suffer, surely a claim would
be stated under Estelle ”); Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir.1996) (deprivation of prescriptive eye glasses constitutes
denial of serious medical need and satisfies objective component; although deprivation did not cause pain, it prolonged plaintiffs
suffering). See also Candelaria v. Coughlin, No. 91 Civ. 2978, 1996 WL 88555, at 7–8 (S.D.N.Y.1996) (denying cross-motions
for summary judgment because the parties disputed whether plaintiffs claims of medical injury based on failure to provide
proper wheelchair were “serious”).
*6 Here, plaintiff alleges delay as well as pain. Plaintiff alleges he waited in bed for six and a half months before the arrival
of the first “defective” wheelchair and another eight months before the delivery of the second chair. Furthermore, plaintiff
contends that, after the C.O.R.C. approved the wheelchair request in his first grievance, defendants simply reordered the same
chair, knowing full well that plaintiff would reject it. Defendants have not disputed these allegations and appear to agree that
at least the first wheelchair was inappropriate for plaintiffs medical needs. (Ex. C–4; Def's Mot. Dismiss at 7.) Accordingly,
although some question exists as to the viability of plaintiff's claim, the Court nevertheless finds that, as alleged, and in the
absence of any medical documentation dispositively evincing that the second wheelchair offered to defendant was appropriate
for his medical needs, plaintiff's claim is sufficient to withstand a motion to dismiss.
V. Retaliation Claims
Plaintiff also alleges that prison officials subjected him to a “great deal of harassment” while he waited for an appropriate
wheelchair. Plaintiff insinuates that by this harassment, prison officials retaliated against him for filing grievances. Plaintiff
claims this harassment to have included an illegal cell search, confiscation of legal materials he needed for court, false
misbehavior reports, curtailed socializing, and a forced transfer to another correctional facility.
The Second Circuit has recognized that prison officials may not retaliate against prisoners for exercising their constitutional
rights. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) (citing Franco v. Kelly, 854 F.2d 584, 589 (2d Cir.1988)).
These rights include a prisoner's constitutional right to file grievances seeking administrative redress. Franco, 854 F.2d at 589.
Nevertheless, “because we recognized ... the ease with which claims of retaliation may be fabricated, we examine prisoners
claims of retaliation with care.” Colon, 58 F.3d at 871 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)). Given the
possibilities for such abuse, the Second Circuit requires a “higher level of detail in pleading [retaliation claims].” Gill v. Mooney,
824 F.2d 192, 194 (2d Cir.1987).
A plaintiff alleging retaliation “bears the burden of showing that the conduct at issue was constitutionally protected and that
the protected conduct was a substantial or motivating fact in the prison officials' decision to discipline plaintiff.” Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir.1996) (citing In Mount Healthy Sch. Dist. V. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50
L.Ed.2d 471 (1977)). In order for a plaintiff to maintain a retaliation claim, the plaintiff must prove that the alleged wrongful
action would not have been taken but for the exercise of his constitutional rights. See Haymes v. Montanye, 547 F.2d 188, 191
(2d Cir.1976). Action that is taken for both valid and invalid reasons will not be deemed unconstitutional if the action would
have been taken in any event for the constitutionally valid reason. See Graham, 89 F.3d at 79.
*7 Where retaliation claims may have merit, the prisoner making the claim must be accorded the full procedural and substantive
safeguards available to other litigants. See Colon, 58 F.3d at 872. “[A] retaliation claim supported by specific and detailed
factual allegations which amounts to a persuasive case ought to be pursued with full discovery. However, a Complaint which
alleges retaliation in wholly conclusory terms may be safely dismissed on the pleadings alone.” Flaherty, 713 F.2d at 13; accord
Colon, 58 F.3d at 872.
A. The Cell Search
Plaintiff's cell search allegation is dismissed in its entirety because the Supreme Court has held that searches of cells implicate
no protected constitutional rights, even if the search is arbitrary or retaliatory in nature. See Hudson v. Palmer, 468 U.S. 517,
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527, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). See also Payne v. Axelrod, 871 F.Supp. 1551, 1555 (N.D.N.Y.1995); Demaio v.
Mann, 877 F.Supp. 89, 95 (N.D.N.Y.1996).
B. Denied Access to the Courts and Deprivation of Legal Property
Any claim plaintiff may be making for the deprivation of his legal documents and medical records must also be dismissed. A
claim for deprivation of property does not lie in federal court if state courts provide an adequate remedy for the deprivation
of that property. Hudson, 468 U.S. at 533; Parratt v. Taylor, 451 U.S. 527, 542–543, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981),
overruled in part on other grounds, 474 U.S. 327, 330–331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Marino v. Ameruso, 837 F.2d
45, 47 (2d Cir.1988). New York provides such a remedy in § 9 of the New York Court of Claims Act, which permits an inmate
to pursue a claim for deprivation of property against the State of New York in the New York Court of Claims. See Demaio, 877
F.Supp. at 95. Therefore, plaintiff may not pursue his deprivation of property claim in this Court.
Nor has plaintiff stated a constitutional claim that confiscation of his legal materials deprived him of reasonable access to court.
While confiscation of an inmate's legal materials can be actionable as a constitutional violation, see Tyler v. “Ron” Deputy
Sheriff, 574 F.2d 427,429 (8th Cir.1978) (citing Sigafus v. Brown, 416 F.2d 105 (7th Cir.1969)); see also Tyler v. Woodson, 597
F.2d 643 (8th Cir.1979), to prevail on such a claim, a plaintiff must establish actual injury. See Monsky v. Moraghan, 127 F.3d
243, 1997 WL 606487 (2d Cir. Oct 2, 1997) (quoting Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996))
(“[A] plaintiff must demonstrate that a defendant caused ‘actual injury,’ i.e., took or was responsible for actions that ‘hindered
[a plaintiff's] efforts to pursue a legal claim.’ ”).
Here, the only allegation plaintiff makes suggesting actual injury is that, following the search of his cell in 1995, he did not
receive back all of his medical records and legal papers relevant to a then pending legal matter. 7 (Ex. G–4.) However, plaintiff
has not alleged anything to indicate that the confiscation in fact interfered with his court access in that legal action. Moreover,
the exhibits to plaintiff's Complaint indicate that plaintiff's property has been returned to him. 8 In short, these allegations are
insufficient to establish any violation of a constitutional nature. At best they provide support for a claim of deprivation of
personal property, which, as mentioned above, is not properly before this Court.
C. Retaliatory False Misbehavior Reports and Curtailed Socializing
*8 Construed liberally, plaintiff alleges that defendants fabricated false misbehavior reports against him and limited his
socializing in retaliation for initiating prison grievances. Plaintiff's sole allegations in this respect are that he was “accused of
sex charges that never happened” and was “constantly found guilty of charges” to keep him on “some kind of restriction ...
or locked up in a room 24 hours a day.” Plaintiff further alleges that defendant Rassman harassed him by preventing inmates
from socializing with plaintiff.
The Second Circuit has held that “ ‘[a]lthough the filing of unfounded charges d[oes] not give rise to a per se constitutional
violation action under section 1983,’ ... a § 1983 claim may stand when the false charges are allegedly brought in retaliation
for an inmate's exercise of his substantive due process rights.” Rodgriquez v. Phillips, 66 F.3d 470, 477 (2d Cir.1995) (quoting
Freeman v. Rideout, 808 F.2d 949, 953 (2d Cir.1986)). However, as noted above, claims of retaliation must be examined with
skepticism and care, Flaherty, 713 F.2d at 13, and a “higher level of detail in pleading” is required. Gill, 824 F.2d at 194.
With respect to plaintiff's allegations of false misbehavior reports and curtailed socializing, the Court finds that plaintiff has
failed to allege the “higher level of detail” required to sustain these claims against a motion to dismiss. See Gill, 824 F.2d at
194. Even viewed under liberal pro se pleading considerations, Haines, 404 U.S. at 520–21, plaintiff's allegations as to these
claims are so conclusory and lacking of any detail whatsoever that the Court can not find them legally feasible. Consequently,
plaintiff's claims of retaliatory false misbehavior reports and curtailed socializing are hereby dismissed.
D. Retaliatory Transfer
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Liberally construing plaintiff's pleadings, his last claim of retaliation concerns his transfer from Green Haven to another
correctional facility on October 26, 1995, eight days after plaintiff's third wheelchair grievance. Plaintiff claims he was
transferred to “further delay my getting a wheelchair ... and to prolong my stay in prison.”
While there is no right to be placed in a particular facility, Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466
(1976), an inmate can not be transferred solely in retaliation for the exercise of his constitutional rights. See Meriwether v.
Coughlin, 879 F.2d 1037, 1047 (2d Cir.1989); see also Lowrance v. Coughlin, 862 F.Supp. 1090, 1099 (S.D.N.Y.1994). The
filing of prison grievances is a constitutionally protected right. Franco v. Kelly, 854 F.2d at 589.
The temporal proximity between the grievance filing and the transfer does provide circumstantial evidence suggesting that the
transfer may have been in retaliation for plaintiff's grievance. Circumstantial facts in a retaliation claim can suggest an improper
motive sufficient to withstand a motion to dismiss. See Gagliardi v. Village of Pawling, 18 F.3d 188 (2d Cir.1994) (denying
motion to dismiss where retaliation claim alleged a chronology of events from which retaliatory intent could be inferred); see
also Murphy v. Lane, 833 F.2d 106, 108–09 (7th Cir.1987) (“Chronology of events from which retaliatory animus on part of
the defendants could be inferred” sufficient to overcome motion to dismiss). 9 Because this is a motion to dismiss and not a
motion for summary judgment, the defendants properly have not provided the Court with any dispositive records or information
indicating that the transfer was not retaliatory in nature. Under these circumstances, however, the Court finds that plaintiff does
allege a sequence of events which may be read as providing some support for an inference of retaliation sufficient to withstand
a motion to dismiss.
*9 Nevertheless, the Court must dismiss plaintiff's retaliatory transfer claim because he has not alleged the personal
involvement of any of the named defendants in the transfer decision. It is well established that as a prerequisite to a damage
award under 42 U.S.C. § 1983, a plaintiff must allege the defendant's direct or personal involvement in the alleged constitutional
deprivation. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). Plaintiff has not done so with respect to his transfer claim
and accordingly the claim must be dismissed. The Court grants plaintiff permission, however, to amend his Complaint within
thirty days of this order, reasserting claims against or adding any defendants whom he can plead with particularity had personal
involvement in his retaliatory transfer claim.
VI. Personal Involvement
As stated above, plaintiff must allege a defendant's direct personal involvement in a constitutional deprivation in order to receive
a damage award under § 1983. See Wright, 21 F.3d at 501. Because the Court has dismissed the plaintiff's retaliation claims,
the retaliation claims against Schneider, Connelly, Pease, Rassman, Zaken, and Bennett are dismissed.
Concerning the plaintiff's allegation of deliberate indifference to plaintiff's medical needs against defendants Zwillinger,
Stevens, and Manion, plaintiff has alleged facts of their direct involvement, knowledge, and responsibility sufficient to withstand
a motion to dismiss.
Plaintiff makes no claims of direct involvement by defendants Goord (Department of Correctional Services Acting
Commissioner), Coombe (Former Commissioner), and Artuz (Green Haven Superintendent) in any constitutional violation.
Liability for damages in a § 1983 action may not be based in respondent superior or vicarious liability doctrines. See Monell
v. Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Absent allegations of personal
involvement, all claims against Goord, Coombe, and Artuz are hereby dismissed.
VII. Eleventh Amendment Immunity
Finally, defendants assert that the instant Complaint is barred by the Eleventh Amendment because defendants were acting in
their official capacities with regard to the claims alleged and thus are immune from suit. It is unclear, however, whether plaintiff
is suing defendants in their official or in their individual capacities. In a case such as this, where doubt exists as to whether
an official is sued in his individual or official capacity, the course of the proceedings will generally resolve the ambiguity by
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revealing the nature of the liability sought to be imposed. See Kentucky v. Graham, 473 U.S. 159, 167 n. 4, 105 S.Ct. 3099, 87
L.Ed.2d 114 (1985) (citing Brandon v. Holt, 469 U.S. 464, 469, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)). It is improper at an
early stage in the proceedings automatically to construe a Complaint as focusing on one capacity and not the other. See Frank
v. Relin, 1 F.3d 1317, 1326 (2d Cir.). Accordingly, the Court assumes for the purposes of this motion that plaintiffs claims are
asserted against defendants in both their individual and their official capacities.
*10 To the extent that plaintiff asserts claims for monetary damages against the defendants in their official capacities, these
claims must be dismissed. A claim against an employee of the New York State Department of Corrections for actions taken in
his or her official capacity is, in effect, a suit against the State. Absent the State's waiver or consent, neither of which have been
given here, the Eleventh Amendment bars from federal court all § 1983 suits for legal or equitable relief brought by citizens
against the State and its agencies. See Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam);
Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). See also Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139,
59 L.Ed.2d 358 (1979) (reaffirming Edelman holding that § 1983 does not override the immunity granted to States under the
Eleventh Amendment). Thus, plaintiffs claims for monetary damages from defendants in their official capacities are dismissed
as barred under the Eleventh Amendment. See generally Dube v. State Univ. of New York, 900 F.2d 587, 594–95 (2d Cir.1990).
However, plaintiff may maintain his claims against defendants in their individual capacities. See generally Hafer v. Melo, 502
U.S. 21, 30–31, 112 S.Ct. 358, 116 L.Ed.2d 301(1991) (“[T]he Eleventh Amendment does not erect a barrier against suits to
impose ‘individual and personal’ liability on state officials under sec.1983.”) (citation omitted).
CONCLUSION
Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is GRANTED in part and DENIED in part. The Court denies
the motions of defendants Zwillinger, Stevens, and Manion to dismiss plaintiff's claim against them of deliberate indifference
to plaintiff's medical needs. The Court grants the motions of defendants Goord, Coombe, Artuz, Schneider, Connelly, Pease,
Rassman, Zaken, and Bennett to dismiss the retaliation and other claims against them in their entirety. As noted herein, plaintiff
has thirty days from the date of this Order to amend his Complaint to allege the personal involvement of defendants in his
retaliatory transfer claim. If plaintiff adds new defendants, he must effect service upon them. The Court schedules a conference
for 1/16/98, at 2:00 pm, at which time defendants will advise the Court of the status of discovery. Attached is a Pro Se
Conference notice that explains to the plaintiff how he may participate in the conference.
SO ORDERED
All Citations
Not Reported in F.Supp., 1997 WL 714878
Footnotes
1 Defendants Goord and Coombe are named as Department of Corrections administrators; defendants Artuz, Schneider,
Connelly, Pease, Rassman, and Zaken are named as Green Haven security personnel; and defendants Zwillinger, Stevens,
and Manion are named as Green Haven medical personnel.
2 The following information is set forth in plaintiff's Complaint, accompanying exhibits and memorandum entitled,
“Opposition Against Defendants [sic] Motion to Dismiss” (“Opp'n Mem.”) Generally, a court may not look outside the
pleadings when reviewing a Rule 12(b)(6) motion to dismiss. However, the mandate to read the papers of pro se litigants
generously makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum. See
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Gadson v. Goord, Not Reported in F.Supp. (1997)
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Gil v. Mooney, 824 F.2d 192, 195 (2d Cir.1987) (in reviewing district court's dismissal of pro se plaintiffs § 1983 claim,
Second Circuit considered plaintiff's affidavit submitted in opposition to defendant's motion to dismiss); Donahue v.
United States Dep't of Justice, 751 F.Supp. 45, 49 (S.D.N.Y.1990) (“The policy reasons favoring liberal construction of
pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least
where those allegations are consistent with the allegations in the complaint ...”); Lucas v. New York City, 842 F.Supp.
101, 104 & n. 2 (S.D.N.Y.1994) (considering pro se plaintiffs opposition papers).
3 All exhibits referenced are annexed to the Complaint.
4 Apparently, plaintiff's August grievance was misplaced or not received by Green Haven personnel. By his own account,
plaintiff refiled the same grievance on October 18, 1995.
5 Any claim for retaliation plaintiff may make is based solely on a permissive reading of the pleadings, interpreting them
to “raise the strongest arguments that they suggest.” See Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995).
6 Plaintiff explains his rejection of both chairs by stating that he “can not utilize any other kind of wheelchair” than the
“self recliner” chair requested and approved by the C.O.R.C. (Ex. K–1.) Defendants do not dispute this allegation. While
plaintiff does not explain the precise nature of his medical condition and this Court knows of no medical condition
requiring use of a self-reclining wheelchair exclusively, in the absence of dispositive information to the contrary, the
Court must accept these facts as true for purposes of a motion to dismiss. It is well established that claims based on a
difference of opinion over matters of medical judgment do not give rise to an Eighth Amendment violation. See Estelle,
429 U.S. at 106–07; Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (“Hathaway III”). Nevertheless, given
plaintiff's stated medical need for a specific type of wheelchair, without more information, the Court can not say that
his allegation is based in mere disagreement with medical opinions.
7 Apparently, plaintiff had filed or was intending to file a legal action in a different matter.
8 The exhibits to plaintiff's Complaint reflects that plaintiff filed a grievance with the C.O.R.C. on January 9, 1995, and
again on March 17, 1995, requesting that his legal documents and other property be returned. (Ex. G–1 & I–1.) On
March 22, 1995, the C.O.R.C. found that all confiscated property has been returned to the plaintiff on January 12, 1995.
(Ex. G–6.) On August 30, 1995, the C.O.R.C. again determined that: (1) plaintiff's property was returned on January
12, 1995; (2) plaintiff refused to sign for his property; and (3) plaintiff's refusal to sign was noted in the hospital log
book. (See Complaint ¶ 8; Ex. I–4.)
9 In contrast, circumstantial evidence of retaliatory animus is not sufficient to withstand a motion for summary judgment.
See Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir.1995) (mere temporal proximity of events may “fuel ... suspicions” but
will not withstand a motion for summary judgment); Dietz v. Damas, 948 F.Supp. 198 (E.D.N.Y.1996).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Gardner v. Mental Health Unit of, Sullivan Correctional Facility, Not Reported in...
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2009 WL 1834382
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Phillip Jerome GARDNER, Plaintiff,
v.
MENTAL HEALTH UNIT OF, SULLIVAN CORRECTIONAL FACILITY et al., Defendants.
No. 07 Civ. 5535(WHP).
|
June 17, 2009.
Attorneys and Law Firms
Mr. Phillip Jerome Gardner, Fallsburg, NY, pro se.
Kevin McCaffery, Esq., Assistant Attorney General, Office of the Attorney General, New York, NY, for Defendants.
MEMORANDUM & ORDER
WILLIAM H. PAULEY III, District Judge.
*1 Pro se Plaintiff Phillip Jerome Gardner (“Gardner”), brings this federal civil rights action for violation of his Fourth, Eighth
and Fourteenth Amendment rights. Defendants the Mental Health Unit of Sullivan Correctional Facility, Dr. Banyon, Dr. Kahn,
and Nurse Darbee (collectively “Defendants”) move for judgment on the pleadings. For the following reasons, Defendants'
motion is granted.
BACKGROUND
For purposes of this motion, the allegations in the Complaint are accepted as true. In August 2006, Gardner was an inmate at
Sullivan Correctional Facility, under the care of the Office of Mental Health (“OMH”), as a result of diagnoses of schizoaffective
and anti-social personality disorders. (Compl. at 1.) Gardner was prescribed Abilify, Zoloft, and Trazadone. (Compl. at 3) On
August 9, 2006, Gardner refused a “finger stick” diabetes test and insulin to treat his diabetes. As a result, an unidentified male
nurse sent him to the Mental Health Unit (“MHU”). (Compl. at 2.) Dr. Kahn interviewed Gardner and authorized his detention
in an observation cell. 1 (Compl. at 2.) Gardner was then strip searched and remained in an observation cell for three to five
days. (Compl. at 2.)
Gardner was also placed in the observation cell from October 4, 2006 to October 11, 2006 for refusing his insulin again. (Compl.
at 7.) On this occasion, he was questioned by Dr. Kahn and Dr. Banyon, both of whom approved his placement in the observation
cell and required him to receive medication via injection. (Compl. at 7.) Once again, Gardner was strip searched prior to his
confinement in the observation cell.
On both occasions, while in the observation cells, Gardner was required to wear a hospital gown, not permitted to shower,
required to request toilet paper, not provided utensils, adequate bedding or pen or paper and alleges he was cold. (Compl. at
6–7.) Gardner also alleges his confinement was improper because refusing medication is a medical issue, not a mental health
issue, and as a result he should have been sent to the infirmary.
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Gardner v. Mental Health Unit of, Sullivan Correctional Facility, Not Reported in...
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DISCUSSION
I. Legal Standard
A Rule 12(c) motion for judgment on the pleadings is decided under the same standard as a Rule 12(b)(6) motion. Burnette
v. Carothers, 192 F.3d 52, 56 (2d Cir.1999). Courts accept the material facts alleged in the complaint as true and construe all
reasonable inferences in the plaintiffs' favor. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998). Courts should
dismiss a complaint for failure to state a claim only if it fails to include “plausible grounds” for relief. Bell Atl. Corp. v. Twombly,
550 U.S. 554, 127 S.Ct. 1955, 1959 (2007) (requiring plaintiff to plead “enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence of [his claim]”) see also Ashcroft v. Iqbal, 556 U.S. ––––, 129 S.Ct. 1937, 1953 (2009) (“
Twombly expounded the pleading standard for all civil actions.”) (internal quotation marks and citations omitted). Dismissal
is proper where a plaintiff fails to plead the basic elements of a claim. See Wright v. Giuliani, No. 99 Civ. 10091(WHP), 2000
WL 777940, at *4 (S.D.N.Y. June 14, 2000).
*2 A pro se litigant's submissions are held to “less stringent standards than [those] drafted by lawyers.” Haines v. Kerner,
404 U.S. 519. 520 (1972). Courts “must construe pro se complaints liberally” and read them to raise the strongest arguments
that they suggest. Lerman v. Bd. of Elections, 232 F.3d 135, 140 (2d Cir.2000); see also Taylor v. Dep't of Educ., 313 F.3d 768,
776 (2d Cir.2002); Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 146 (2d Cir.2002). Nevertheless, the Court does not have to
accept as true “conclusions of law or unwarranted deductions of fact.” First Nationwide Bank v. Gelt Funding Corp., 27 F.3d
763, 771 (2d Cir.1994) (citations omitted).
II. Eighth Amendment Claim
“[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under
the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). “To prove a violation of the Eighth Amendment, an
inmate must show (1) that the deprivation alleged is ‘objectively sufficiently serious' such that the plaintiff was denied ‘the
minimal civilized measure of life's necessities,’ and (2) that the defendant official possessed a ‘sufficiently culpable state of
mind’ associated with ‘the unnecessary and wanton infliction of pain.’ “ Trammell v. Keane, 338 F.3d 155, 161 (2d Cir.2003)
(quoting Farmer v. Brennan, 511 U.S. 825,834(1994)).
While “the Constitution does not mandate comfortable prisons”, Rhodes v. Chapman, 452 U.S. 337, 349 (1981), the Eighth
Amendment “imposes duties on [prison] officials ... [to] provide humane conditions of confinement ... [and] ensure that inmates
receive adequate food, clothing, shelter, and medical care.” Farmer, 511 U.S. at 832 (internal quotation omitted).
Gardner alleges his Eighth Amendment rights were violated because he was (1) provided inadequate clothing and bedding; (2)
denied soap, toothpaste, utensils, pen, paper, and the opportunity to shower; (3) required to request toilet paper; and (4) placed
in a cold observation cell.
First, Gardner was not actually deprived of clothing or bedding. Second, denying a prisoner the opportunity to shower for seven
days and withholding toiletries, while uncomfortable, does not endanger an inmate's health and safety. See, e.g., Farmer, 511
U.S. at 837; Ifill v. Goord, No. 03–CV–355S (WMS), 2007 WL 2874413, at *5–6 (W.D.N.Y. Sept. 27, 2007) (depravation of
access to toiletries insufficient to establish a constitutional violation); Brown v. McElroy, 160 F.Supp.2d 699, 706 (S.D.N.Y.2001)
(allegation that plaintiff was kept in a room without toiletries insufficient to state a constitutional claim); McCoy v. Goord,
255 F.Supp.2d 233, 260 (S.D.N.Y.2003) (“A two-week suspension of shower privileges does not suffice as a denial of basic
hygienic needs.” (internal quotation omitted)). Third, while complete deprivation of toilet-paper may constitute a constitutional
violation if it poses a risk to inmate health and safety, see Keane, 338 F.3d at 165, here Gardner was simply required to request
toilet tissue. Fourth, while the deprivation of food may rise to constitutional levels under certain circumstances, see Robles v.
Coughlin, 725 F.2d 12, 15 (2d Cir.1983), a lack of utensils does not present “an immediate danger to health or well-being.”
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Gardner v. Mental Health Unit of, Sullivan Correctional Facility, Not Reported in...
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Chapdelaine. v. Keller, 95 Civ. 1126(RSP)(GLS), 1998 WL 357350, at *12 (N.D.N.Y. Apr. 16, 1998). Finally, the unavailability
of a pen or paper, is not objectively serious. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986).
*3 As for Gardner's claim that he was placed in a cold observation cell, “[a]n Eighth Amendment claim may be established by
proof that the inmate was subjected for a prolonged period to bitter cold,” Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir.2001),
provided that the cell's conditions were “objectively, sufficiently serious that [the prisoner] was denied the minimal civilized
measure of life's necessities.” Gaston, 249 F.3d at 164; see also Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir.1988) (Prisoner
“exposed to bitterly cold temperatures for approximately three months in the fall and winter of 1983–84 when the large window
frames in his cell block were empty and correction officers made things worse by tearing down plastic sheeting partially covering
the frames.”); Gaston, 249 F.3d at 165 (Prisoner exposed to “freezing and sub-zero temperatures” in the winter months.); Borges
v. McGinnis, 03 Civ. 6375(CJS), 2007 WL 1232227 at *5 (W.D.N.Y. Apr. 26, 2007) (“An inmate cannot establish an Eighth
Amendment claim merely by establishing that he was uncomfortably cold for a short period.”)). Gardner's allegation that he
was “very cold” is not objectively serious enough to constitute an Eighth Amendment violation, particularly when it lasted no
more than seven days during the months of August and October.
II. Fourth Amendment Claim
“The Fourth Amendment [ ] requires all searches conducted within a prison, including strip searches, to be reasonable.” 2 Jean–
Laurent v. Wilkerson, 438 F.Supp.2d 318, 323 (S.D.N.Y.2006) (citing Hodges v. Stanley, 712 F.2d 34, 35–36 (2d Cir.1983)).
“The test of reasonableness under the Fourth Amendment ... requires a balancing of the need for the particular search against the
invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which
it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979).
Corrections staff have a legitimate penological interest in ensuring that inmates admitted to observation cells are not carrying
contraband. That need for safety and security outweighs the personal intrusion. See Gomez v. Coughlin, 685 F.Supp. 1291,
1300 (S.D.N.Y.1988) (Strip search of an inmate required by DOCS regulations before the inmate was placed in administrative
segregation “was prudent, reasonable and required.”); see also Iqbal v. Hasty, 490 F.3d 143, 171 (2d Cir.2007) (noting it may be
reasonable to search an inmate before he is placed in administrative segregation). Accordingly, Gardner's Fourth Amendment
claim is dismissed.
III. Fourteenth Amendment Claim
To the extent that Gardner asserts a claim for a violation of his liberty interest when he refused to take his diabetes and mental
health medication, it is dismissed. “[A] prison may compel a prisoner to submit to treatment despite his general right to refuse
such treatment when prison officials, ‘in the exercise of professional judgment, deem it necessary to carry out’ legitimate
penological objectives.” Pabon v. Wright, 459 F.3d 241, 251 (2d Cir.2006) (quoting White v. Napoleon, 897 F.2d 103, 113 (3rd
Cir.1990)).
CONCLUSION
*4 For the foregoing reasons, Defendants' motion for judgment on the pleadings is granted and this action is dismissed. The
Clerk of the Court is directed to mark the case closed.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2009 WL 1834382
Case 9:24-cv-00872-BKS-MJK Document 26 Filed 10/28/25 Page 82 of 128

Gardner v. Mental Health Unit of, Sullivan Correctional Facility, Not Reported in...
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Footnotes
1 Gardner's complaint refers to the observation cell as a “strip cell.”
2 Although Gardner identifies the strip search as an Eighth Amendment violation, this Court properly considers it under
the Fourth Amendment standard.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-00872-BKS-MJK Document 26 Filed 10/28/25 Page 83 of 128

Garraway v. Griffin, 707 Fed.Appx. 16 (2017)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
707 Fed.Appx. 16
This case was not selected for publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals, Second Circuit.
Mark GARRAWAY, Plaintiff-Appellant,
v.
T. GRIFFIN, Superintendent, M. Sheahan, Act. Sup. & Dep. Supt. of Security, S. Smith, Laundry
Supervisor, Lt. T. Evans, Watch Commander, Sgt. G. Belz, Sgt. Pulsifer, C. O. M. Shumaker, C. O. J.
Edger, C. O. Brink, C. O. Erway, Dr. Welsey Canfield, Dr. B. Oakes, Vonhagn, Nurse Administrator,
McNett, Nurse, J. Clement, Nurse, J. Jillson, Nurse, A. Schunk, P.A., Defendants-Appellees,
John and Janes Does, Sergeants John Does 1 & 2, John and Jane Does, Medical Staff
and Department Nurses, Jane Does, Mailroom Supervisor and Staff, Correctional
Officer John Does, J. Mackey, C. Washburn, B. Krusen, J. Volevich, Nurse, Defendants.
No. 16-1195-cv
|
August 31, 2017
Synopsis
Background: Prisoner brought § 1983 suit against corrections officers and prison officials, alleging that the conditions of his
confinement violated the Eighth Amendment. The United States District Court for the Western District of New York, William
M. Skretny, J., granted summary judgment in favor of defendants. Prisoner appealed.
Holdings: The Court of Appeals held that:
[1] prisoner satisfied objective and subjective prongs of claim that corrections officers knowingly placed him in a cell with a
feces-soiled mattress and refused to replace it, in violation of his Eighth Amendment rights;
[2] prisoner failed to show that any of the supervisory defendants personally violated his Eighth Amendment rights, as required
for § 1983 claim against them; and
[3] remand was required for consideration of due process and Eighth Amendment claims premised on sleep deprivation.
Affirmed in part, vacated in part, and remanded.
See also, 2013 WL 2105903.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.
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Garraway v. Griffin, 707 Fed.Appx. 16 (2017)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
West Headnotes (4)
[1] Prisons Hazardous and unhealthful conditions; housing
Sentencing and Punishment Hazardous and unhealthful conditions
Evidence that prisoner was placed in cell with a feces-soiled mattress and was required to sleep on it for more than
three months was sufficient to satisfy objective element of Eighth Amendment deliberate indifference claim against
corrections officers. U.S. Const. Amend. 8.
5 Cases that cite this headnote
[2] Prisons Hazardous and unhealthful conditions; housing
Sentencing and Punishment Hazardous and unhealthful conditions
Evidence that prisoner informed corrections officers of feces-soiled mattress in his cell but that they did not take
any action for three months, when he filed a formal grievance, was sufficient to satisfy subjective prong of Eighth
Amendment deliberate indifference claim against corrections officers. U.S. Const. Amend. 8.
2 Cases that cite this headnote
[3] Civil Rights Criminal law enforcement; prisons
Absence of evidence that supervisory defendants personally violated Eighth Amendment rights of prisoner who was
placed in cell with feces-soiled mattress precluded recovery against them in § 1983 action. U.S. Const. Amend. 8;
42 U.S.C.A. § 1983.
3 Cases that cite this headnote
[4] Federal Courts Issues or questions not passed on below
Given liberal construction due to pleadings submitted by pro se litigants, remand of § 1983 action was required for
consideration of due process and Eighth Amendment claims, premised on sleep deprivation, brought by prisoner who
had been placed in cell with feces-soiled mattress, as district court had not considered issues. U.S. Const. Amend.
5, 8; 42 U.S.C.A § 1983.
1 Case that cites this headnote
More cases on this issue
Appeal from a judgment of the United States District Court for the Western District of New York (William M. Skretny, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on
March 31, 2016, is AFFIRMED in part and VACATED in part, and the case is REMANDED for further proceedings.
Attorneys and Law Firms
FOR APPELLANT: Mark Garraway, pro se, Malone, New York.
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Garraway v. Griffin, 707 Fed.Appx. 16 (2017)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
FOR APPELLEES: Patrick A. Woods, Assistant Solicitor General (Barbara D. Underwood, Solicitor General; Andrew Bing,
Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of Albany, New York, New York.
PRESENT: PIERRE N. LEVAL, REENA RAGGI, RAYMOND J. LOHIER, JR., Circuit Judges.
*17 *18 SUMMARY ORDER
Mark Garraway, pro se, appeals from the award of summary judgment to defendant corrections officers and prison officials on
his claim under 42 U.S.C. § 1983 that he was confined under conditions violative of the Eighth Amendment. He alleges that
defendants knowingly placed him in a cell with a feces-soiled mattress and refused to replace it despite his complaints. We
review an award of summary judgment de novo and will affirm only if the record, viewed in the light most favorable to the non-
movant, shows no genuine dispute of material fact and the movant's entitlement to judgment as a matter of law. See Jackson
v. Fed. Express, 766 F.3d 189, 193–94 (2d Cir. 2014). We may affirm, however, on any ground supported by the record. See
Figueroa v. Mazza, 825 F.3d 89, 99 (2d Cir. 2016). In conducting our review, we assume the parties’ familiarity with the facts
and record of prior proceedings, which we reference only as necessary to explain our decision to affirm in part and vacate in part.
To state an Eighth Amendment claim in this context, a plaintiff must allege that “(1) objectively, the deprivation the inmate
suffered was sufficiently serious that he was denied the minimal civilized measure of life's necessities, and (2) subjectively, the
defendant official acted with a sufficiently culpable state of mind, such as deliberate indifference to inmate health or safety.”
Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (alteration and internal quotation marks omitted).
[1] The objective element is satisfied by a showing that the plaintiff's “conditions ... pose an unreasonable risk of serious
damage to his health,” which may include establishing a deprivation of “basic human needs such as ... safe and sanitary living
conditions.” Id. (internal quotation marks omitted). Exposure to human waste can meet the objective element of a conditions-of-
confinement Eighth Amendment claim depending on “both the duration and the severity of the exposure.” Willey v. Kirkpatrick,
801 F.3d 51, 68 (2d Cir. 2015); see id. at 66–68. Although defendants contest that Garraway was subject to a sufficiently serious
deprivation, we agree with the district court that Garraway adduced sufficient evidence, in the form of his own statements
and notes he purportedly wrote in July 2011 complaining about his mattress, to establish a genuine dispute of material fact
as to whether he had been so deprived. Moreover, the constitutional magnitude of such a deprivation, if proved, was clearly
established by 2011 so as to defeat defendants’ claim of qualified immunity. See *19 Gaston v. Coughlin, 249 F.3d 156, 166
(2d Cir. 2001); LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972).
The subjective prong of a conditions-of-confinement claim is satisfied by a showing that the defendant “acted with more than
mere negligence” by, for instance, “know[ing] of, and disregard[ing], an excessive risk to inmate health or safety.” Walker v.
Schult, 717 F.3d at 125 (internal quotation marks omitted). Garraway argues that he came forward with sufficient evidence on
this prong as well. We agree.
[2] Garraway asserts that he verbally informed each of defendants Shumaker, Edger, Brink, Erway, Belz, and Pulsifer about the
condition of his mattress at least once and that he informed defendant Smith of the problem several times, both in writing and
verbally. Shumaker and Edger, who initially placed Garraway in the cell with the obviously soiled mattress, allegedly mockingly
told him “good luck,” and then failed to follow the protocol for having the cell cleaned. Other defendants told Garraway that
they would look into his complaint but failed to do so. Still others told Garraway to direct his request elsewhere. 1 In short,
no defendant advised of the mattress condition took any action until October 2011, when Garraway filed his formal grievance.
Defendants claim not to recall Garraway's requests for a mattress replacement before the grievance. The parties also dispute
whether Garraway's grievance prompted action in two days or longer. The parties further disagree as to whether Garraway
could have cleaned the mattress himself with the disinfectant provided weekly to the inmates. A court cannot itself resolve these
disputes on summary judgment. Rather, it must assume that these issues will all be resolved in Garraway's favor.
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Garraway v. Griffin, 707 Fed.Appx. 16 (2017)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
It is undisputed, moreover, that the cell's previous occupant had been disciplined for throwing feces on the day before Garraway
was moved to the cell, and that the corrections officer defendants made rounds near Garraway's cell during his confinement.
Viewing these facts most favorably to Garraway, we conclude that they present genuine issues of material fact as to whether
Shumaker, Edger, Brink, Erway, Belz, Pulsifer, and Smith knew that Garraway's mattress was soiled with human waste and, if
they did, whether they exhibited more than mere negligence in requiring him to sleep on such a mattress for more than three
months. See Walker v. Schult, 717 F.3d at 125.
[3] As to supervisor defendants Sheahan and Evans, Garraway asserts that, despite knowing of the incident in the cell involving
its prior occupant, they failed to order that the cell be properly cleaned according to protocol before Garraway moved into it. 2
Garraway has adduced no evidence, however, that an order from these supervisors was required for the cell in question to be
cleaned. Nor does he adduce any evidence that Sheahan, Evans, or supervisor defendant Griffin had any knowledge that he
was sleeping on a feces-soiled mattress. The lack of any such evidence precludes him from showing that any of the supervisory
defendants personally violated his Eighth Amendment rights. See *20 Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009) (stating that plaintiff bringing § 1983 claims “must plead that each Government-official defendant,
through the official's own individual actions, has violated the Constitution”); Raspardo v. Carlone, 770 F.3d 97, 122 (2d Cir.
2014) (applying Iqbal standard at summary judgment). The claims against these supervisors were properly dismissed.
[4] Finally, Garraway argues that he raises issues of fact supporting a due process claim and an Eighth Amendment claim
premised on sleep deprivation. The district court did not address these claims. Because courts in this circuit “liberally construe
pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest,” see
McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal quotation marks omitted), we remand these
claims for consideration by the district court as to defendants Shumaker, Edger, Brink, Erway, Belz, Pulsifer, and Smith. 3
We have considered Garraway's remaining arguments and conclude that they are without merit. Accordingly, the judgment of
the district court is AFFIRMED in part as to defendants Sheahan, Evans, and Griffin, and VACATED in part as to defendants
Shumaker, Edger, Brink, Erway, Belz, Pulsifer, and Smith, and the case is REMANDED for further proceedings.
All Citations
707 Fed.Appx. 16
Footnotes
1 Garraway claims that he asked defendant Brink about the mattress multiple times and that he informed defendant Pulsifer
of his previous failed attempts to secure a new mattress.
2 The “Watch Commanders Log Book” report to which Garraway points to establish Sheahan's awareness of the incident
with the prior occupant makes reference only to that inmate throwing feces outside of the cell, not inside of it.
3 As stated above, because Garraway cannot show that supervisory defendants Sheahan, Evans, and Griffin personally
violated his Eighth Amendment rights, he also cannot sustain a claim against them premised on sleep deprivation.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Jackson v. Annucci, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 2581340
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Lavogia JACKSON, Plaintiff,
v.
ANNUCCI, et al., Defendants.
20-CV-02008 (PMH)
|
Signed 06/23/2021
Attorneys and Law Firms
Lavogia Jackson, Napanoch, NY, Pro Se.
Deanna Lea Collins, Jonathan James Wilson, NYS Office of the Attorney General, New York, NY, for Defendants.
MEMORANDUM OPINION AND ORDER
PHILIP M. HALPERN, United States District Judge:
*1 Plaintiff Lavogia Jackson (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. §
1983 against Anthony J. Annucci (“Annucci”), Donald Venettozzi (“Venettozzi”), Michael Royce (“Royce”), Eric Gutwein
(“Gutwein”), Derek Deegan (“Deegan”), Rosita Rossy (“Rossy”), 1 William Rivera (“Rivera”), and Raymond Dahl (“Dahl,”
and collectively, “Defendants”) for violating his constitutional rights while he was incarcerated at Green Haven Correctional
Facility (“Green Haven”). (Doc. 40, “Am Compl.”). Plaintiff asserts five claims for relief: (1) unspecified Eighth and Fourteenth
Amendment violations; (2) deliberate indifference to his medical needs in violation of the Eighth Amendment; (3) conditions
of confinement in violation of the Eighth Amendment; (4) deprivation of procedural due process rights in violation of the
Fourteenth Amendment; and (5) conspiracy to retaliate against him for engaging in protected activity in violation of the First
Amendment. Plaintiff also appears to bring claims for relief based on violations of New York State Department of Corrections
and Community Supervision (“DOCCS”) directives and associated regulations. 2
Plaintiff filed his original Complaint on March 4, 2020. (Doc. 2). On October 29, 2020, Plaintiff sought leave to file an Amended
Complaint, and annexed a proposed Amended Complaint to his motion. (Doc. 35). On October 30, 2020, the Court granted
Plaintiff's motion for leave to file an Amended Complaint, construed Plaintiff's proposed Amended Complaint as asserting
claims against the same Defendants named in Plaintiff's original Complaint, and directed the Clerk of Court to separately docket
Plaintiff's Amended Complaint. (Doc. 39).
On December 4, 2020, Defendants filed a motion to dismiss the Amended Complaint under Federal Rule of Civil Procedure
12(b)(6). (Docs. 43-45). On December 7, 2020, the Court sua sponte denied Defendants’ motion to dismiss without prejudice
to renewal because Defendants failed to first request a pre-motion conference in compliance with Rule 2(C) of this Court's
Individual Practice. (Doc. 46). On December 18, 2020, Defendants filed a letter requesting a pre-motion conference in advance
of filing a motion to dismiss. (Doc. 48). On December 29, 2020, Plaintiff requested an extension of time to respond to
Defendants’ already-denied motion to dismiss. (Doc. 50). On December 30, 2020, the Court granted Defendants leave to move
to dismiss Plaintiff's Amended Complaint. (Doc. 51).
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*2 On January 29, 2021, Defendants re-filed their motion to dismiss. (Doc. 61; Doc. 62, “Defs. Br.”). On March 5, 2021,
Plaintiff filed three documents in response: (1) a document containing his “objections” and several exhibits (Doc. 65); (2) a
memorandum of law in support of his opposition to Defendants’ motion to dismiss (Doc. 66, “Pl. Opp.”); 3 and (3) a declaration
for entry of a default judgment against Defendants (Doc. 67). On March 22, 2021, Defendants filed their reply memorandum of
law in further support of their motion to dismiss and in opposition to Plaintiff's motion for default judgment. (Doc. 70, “Defs.
Reply”).
For the following reasons, Defendants’ motion to dismiss is GRANTED.
BACKGROUND
Plaintiff was an inmate at Green Haven. 4 (Am. Compl. at 1). 5 On September 3, 2019, Rossy (a Sergeant at Green Haven)
directed two unidentified male correction officers to “pat frisk” Plaintiff. (Id. ¶ 2). At the time of the “pat frisk,” Plaintiff was
wearing “medically issued” back and knee braces. (Id. ¶ 4). Plaintiff's permit for these braces, however, was expired by one
day. (Id. ¶ 5). Given the permit's expiration, Rossy ordered that the back and knee braces be confiscated and “placed in the H-
Block officer's cage until” Plaintiff received a new medical permit. (Id. ¶ 6).
On September 10, 2019, Plaintiff received a new medical permit, went to the H-Block, and requested that the back and knee
braces be returned to him. (Id. ¶¶ 7-8). The braces, however, were missing. (Id.). Plaintiff filed a grievance against Rossy that
day for confiscating his braces. (Id. ¶ 9).
Nearly a month later, on October 11, 2019, Plaintiff was informed by Deegan (a Lieutenant at Green Haven) that Plaintiff had
been randomly selected for drug testing and was ordered to provide a urine sample. (Id. ¶¶ 11-12). Plaintiff's urine sample was
stored in a refrigerator, where it remained until October 17, 2019, when Dahl (a Correction Officer at Green Haven) removed
it to complete the drug test. (Id. ¶ 13). Plaintiff's urine sample was tested using the Indiko Plus urinalysis system, which, at the
time, was a new drug testing system being used by DOCCS. 6 (Id. at 16). Plaintiff's sample tested positive. 7 (Id.). Plaintiff was
thereafter placed in “keeplock” confinement and charged with violating DOCCS Rule 113.24, which prohibits inmates from
using narcotics or controlled substances without a prescription. (Id. ¶ 14). That same day, Royce (the Superintendent of Green
Haven) was allegedly informed that Plaintiff had been placed in “keeplock” confinement for such violation. (Id. at 21).
*3 On October 21, 2019, in advance of his disciplinary hearing, Plaintiff requested six documents: (1) “urinalysis drug
testing directive #4937”; (2) “7 NYCRR Chapter V Standards and Procedures for Disciplining Inmates”; (3) “Reasonable
Accommodations for Persons with Disabilities”; (4) “the freezer log book for where the plaintiff's sample had been purportedly
stored ... [and] all person(s) who had accessed that freezer from [October 11, 2019] – date of collection of [Plaintiff's] sample,
until [October 17, 2019] – the date of its removal from that freezer”; (5) “the proficiency reports a study that illustrates how the
tester performed on a random blind independent test sample”; and (6) “[Dahl's] certification for th[e] new Indiko Plus urinalysis
testing procedure system.” (Id. ¶¶ 16-17). Plaintiff was provided with documents (1)-(3), but not documents (4)-(6). (Id. ¶ 18).
He was also provided with a “chain of custody form.” (Id. ¶ 22).
Plaintiff's disciplinary hearing commenced on October 23, 2019. (Id. ¶¶ 20-23). At the hearing, Plaintiff lodged three objections:
(1) he was not provided with all the documents he requested (id. ¶ 24); (2) Gutwein (the disciplinary hearing officer) “engaged in
a loud conversation with several people,” including Rivera (a Correction Officer at Green Haven), about the denial of Plaintiff's
request for certain documents (id. ¶¶ 20-22); and (3) Plaintiff was not given sufficient time to review the documents that he was
provided (id. ¶ 24). Plaintiff pled not guilty to the charging document. (Id.). Gutwein then adjourned Plaintiff's hearing. (Id.).
On October 28, 2019, Green Haven “was placed on lockdown.” (Id. ¶ 25). Plaintiff wrote a letter to Venettozzi (Director of
Special Housing Unit, DOCCS) to inform him of the “lockdown,” and that Plaintiff's hearing “was to be completed by October
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30, 2019.” (Id.). Plaintiff also included in his letter that, “should anyone seek an extension of time” to conduct the hearing
beyond the fourteen-day timeline contemplated by N.Y. Comp. Codes R. & Regs. tit. 7, § 251.1-5.1, “[he] would like a copy of
said request [and] the day said extension was granted ....” (Id.). 8 Plaintiff's letter was not acknowledged. (Id.).
Plaintiff's disciplinary hearing resumed on November 4, 2019, despite Plaintiff's objection that Gutwein failed to properly notify
Plaintiff that the date of his hearing had been extended beyond the fourteen-day timeline contemplated by N.Y. Comp. Codes
R. & Regs. tit. 7, § 251.1-5.1(b). (Id. ¶ 26). Gutwein, allegedly without explanation, would not give Plaintiff a copy of the
authorization that had been obtained to extend the date of Plaintiff's hearing. (Id. ¶ 27). Gutwein continued the hearing and
called Deegan and Dahl as witnesses. (Id. ¶¶ 27, 29-30). In response to Plaintiff's questioning, Dahl testified that the names
of the individuals who accessed the refrigerator in which Plaintiff's urine sample had been stored were recorded on the “chain
of custody form” that had been given to Plaintiff. (Id. ¶ 27). But Dahl allegedly did not provide the names of everyone who
had accessed the refrigerator from October 11, 2019 (the date of collection) until October 17, 2019 (the date of removal and
testing). (Id.). Dahl also testified that he was no longer required to comply with Directive No. 4937, 9 because he was using the
new Indiko Plus urinalysis machine. (Id.). Deegan testified that he did not personally submit a request to have Plaintiff tested
for drugs; rather, the request was randomly generated by a computer. (Id. ¶ 29). Deegan did not explain why this information
was not provided on the “request for urinalysis test form.” (Id.). Plaintiff was not satisfied with Dahl and Deegan's responses
to his questions. (Id. ¶¶ 27, 30). Gutwein denied Plaintiff's request for additional witnesses as redundant and further adjourned
the hearing. (Id. ¶ 31).
*4 On November 7, 2019, Plaintiff was permitted to question a representative of the company that manufactured the Indiko
Plus machine used by DOCCS to test Plaintiff's urine for drugs. (Id. ¶ 32). Plaintiff asked the representative about testing
for [tetrahydrocannabinol]—the psychoactive compound in marijuana. (Id.). Gutwein then denied Plaintiff's request to recall
Deegan as a witness. (Id. ¶ 33). Plaintiff also requested to call Rivera to testify about requesting a “false extension ... of
time” to conduct the disciplinary hearing in violation of N.Y. Comp. Codes R. & Regs. tit. 7, § 251.1-5.1. (Id. ¶ 34). Gutwein
denied this request as redundant. (Id.). He then concluded the hearing by finding Plaintiff guilty of violating DOCCS Rule
113.24 and imposed the following sanctions: pre-hearing “keeplock” confinement for twenty-one days; post-hearing “keeplock”
confinement for thirty-nine days; loss of recreation for ninety days; loss of packages for ninety days; loss of commissary for
ninety days; loss of phone use for ninety days; loss of property for ninety days; and loss of personal property for ninety days.
(Id. ¶ 35). Thereafter, Plaintiff was held at the disciplinary hearing office while correction officers confiscated personal property
in Plaintiff's cell, including: books, writing instruments, paper, hygiene products, clothing, a bible, family photographs, and
eating utensils. (Id. ¶ 36).
Plaintiff appealed Gutwein's guilty determination. (Id. at 20). On January 8, 2020, Venettozzi reviewed and affirmed this
determination; approximately two weeks later, however, on January 22, 2020, Venettozzi reversed his decision. (Id. at 19-20).
This suit followed.
STANDARD OF REVIEW
On a Rule 12(b)(6) motion, a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the ple[d] factual content allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant acted
unlawfully.” Id. The factual allegations pled “must be enough to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555.
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“When there are well-ple[d] factual allegations, a court should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. Thus, the court must “take all well-ple[d] factual allegations as
true, and all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff[ ].” Leeds v. Meltz, 85 F.3d
51, 53 (2d Cir. 1996). The presumption of truth, however, “ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ ” Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels
and conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.
A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to less stringent standards than formal
pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (internal quotation marks omitted)). Because pro se plaintiffs “ ‘are often unfamiliar with the formalities of pleading
requirements,’ courts must apply a more flexible standard in determining the sufficiency of a pro se [complaint] than they would
in reviewing a pleading submitted by counsel.’ ” Smith v. U.S. Dep't of Just., 218 F. Supp. 2d 357 (W.D.N.Y. 2002) (quoting
Platsky v. Cent. Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991)). While “[p]ro se complaints are held to less stringent
standards than those drafted by lawyers, even following Twombly and Iqbal ... dismissal of a pro se complaint is nevertheless
appropriate where a plaintiff has clearly failed to meet minimum pleading requirements.” Thomas v. Westchester Cty., No. 12-
CV-6718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013) (internal citations omitted); see also Chavis v. Chappius, 618 F.3d
162, 170 (2d Cir. 2010) (“Even in a pro se case ... although a court must accept as true all of the allegations ... in a complaint,
that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” (internal quotation marks omitted)).
*5 Therefore, while the Court must “draw the most favorable inferences that [a plaintiff's] complaint supports, [it] cannot
invent factual allegations that [a plaintiff] has not pled.” Chappius, 618 F.3d at 170. The Court also has a duty to interpret “the
pleadings of a pro se plaintiff liberally and interpret them ‘to raise the strongest arguments that they suggest.’ ” McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
ANALYSIS
I. Section 1983 Claims
Construing the Amended Complaint liberally, Plaintiff asserts several claims for relief under 42 U.S.C. § 1983. That law
provides, in pertinent part, that “[e]very person who, under color of any statute ... subjects, or causes to be subjected, any citizen
of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured ....” 42 U.S.C. § 1983. “[T]his language does not create substantive rights; rather, it creates a
mechanism by which individuals can vindicate the violation of rights secured elsewhere.” Santucci v. Levine, No. 17-CV-10204,
2021 WL 76337, at *3 (S.D.N.Y. Jan. 8, 2021). As such, in each permutation of a claim under that law, “a plaintiff must
demonstrate: ‘(1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated
by a person acting under color of state law, or a state actor.’ ” Town & Country Adult Living, Inc. v. Vill./Town of Mount Kisco,
No. 17-CV-8586, 2019 WL 1368560, at *17 (S.D.N.Y. Mar. 26, 2019) (quoting Walker v. Clemson, No. 11-CV-9623, 2012 WL
2335865, at *3 (S.D.N.Y. June 20, 2012)).
The Court will address the plausibility of Plaintiff's claims for relief seriatim.
A. Plaintiff's First Claim for Relief: Eighth and Fourteenth Amendment Violations
With respect to this claim for relief, as a threshold matter, “[t]o establish a § 1983 claim, a plaintiff must show the defendants’
personal involvement in the alleged constitutional violation.” Boley v. Durets, 687 F. App'x 40, 41 (2d Cir. 2017) (citing Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994)); see also Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (noting that supervisory
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liability requires that the “defendant, through the official's own individual actions, has violated the Constitution” (quoting Iqbal,
556 U.S. at 676)); Greene v. Sampson, No. 18-CV-6103, 2021 WL 355477, at *4 (S.D.N.Y. Feb. 2, 2021). “[T]here is no
respondeat superior liability under § 1983.” Jamison v. Fischer, No. 11-CV-4697, 2012 WL 4767173, at *4 (S.D.N.Y. Sept. 27,
2012). Failure to allege a defendant's personal involvement renders a “complaint ... ‘fatally defective’ on its face.” Alfaro Motors,
Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (quoting Black v. United States, 534 F.2d 524, 527-28 (2d Cir. 1976)). Here,
Plaintiff fails to allege personal involvement with respect to all claims for relief against Annucci, Royce, and Venetozzi arising
from alleged Eighth Amendment conditions of confinement and Fourteenth Amendment procedural due process violations.
Regarding Annucci, the Court agrees with Defendants that Plaintiff's claims are “solely based on [Annucci's] position as Acting
Commissioner of [DOCCS].” (Defs. Br. at 7). According to Plaintiff, in September 2019, Annucci ordered the reversal of guilty
determinations that resulted from positive test results for suboxone and buprenorphine produced by the Indiko Plus machine.
(Am. Compl. at 16). Plaintiff also alleges that, in November 2019, Annucci issued a statewide memorandum regarding false
positive test results produced by the Indiko Plus machine. (Id. at 19). As a result, Plaintiff alleges that, due to the “continued
use” of the Indiko Plus machine, Annucci “knew” of the risk that Plaintiff would be found guilty based on false positive results.
(Id. at 17). But that conclusory allegation does not connect Annucci to the specific constitutional violations that Plaintiff alleges.
Indeed, Plaintiff does not explain how or whether Annucci's modification of decisions rendered in connection with false positive
tests for suboxone and buprenorphine relate to his own positive test for an unknown substance. Rather, Plaintiff's allegations are
merely based on Annucci's “ ‘high position of authority’ at DOCCS,” and Plaintiff's belief that, based on this position, Annucci
necessarily had knowledge of and personal involvement in the alleged misconduct. See Allah v. Annucci, No. 16-CV-1841,
2018 WL 4571679, at *6 (S.D.N.Y. Sept. 24, 2018) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Such allegations
are insufficient to establish Annucci's personal involvement. See id.; see also Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016)
(“[A] defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held
a high position of authority.” (internal quotation marks omitted)); Hernandez v. Keane, 341 F.3d 137, 144-45 (2d Cir. 2003)
(“ ‘Absent some personal involvement by [the supervisory official] in the allegedly unlawful conduct of his subordinates,’ he
cannot be liable under section 1983.” (quoting Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987))). Accordingly, all claims for
relief against Annucci are dismissed.
*6 As for Royce, Plaintiff alleges that he was notified of Plaintiff's confinement, and that such notification would have indicated
that Plaintiff's positive drug test was obtained using the allegedly faulty Indiko Plus machine. (Am. Compl. at 21). But it is well-
established that “[m]ere notice of alleged wrongdoing is insufficient to establish a supervisor's or administrator’[s] personal
involvement.” Gibson v. Comm'r of Mental Health, No. 04-CV-4350, 2008 WL 4276208, at *8 (S.D.N.Y. Sept. 17, 2008); see
also McNair v. Kirby Forensic Psychiatric Ctr., No. 09-CV-6660, 2010 WL 4446772, at *13 (S.D.N.Y. Nov. 5, 2010). Without
more, Royce cannot be held liable for any alleged constitutional violations. Therefore, all claims for relief against Royce are
also dismissed.
With respect to Venettozzi, Plaintiff maintains that by reviewing and affirming Plaintiff's guilty determination, he was made
aware of the alleged procedural due process violations at the hearing below, and thus was personally involved. (Am. Compl. at
19-20). But “[c]ourts within this Circuit are split as to whether a prison official who simply denies an inmate's administrative
appeal from a disciplinary hearing can be held liable under § 1983.” Ortiz v. Russo, No. 13-CV-5317, 2015 WL 1427247, at
*13 (S.D.N.Y. Mar. 27, 2015). Some courts have held that an appeal officer may be held liable for failure to correct procedural
due process violations that occurred at the disciplinary hearing below, See Lebron v. Mrzyglod, No. 14-CV-10290, 2017 WL
365493, at *9 (S.D.N.Y. Jan. 24, 2017); see also Colon v. Annucci, 344 F. Supp. 3d 612, 631 (S.D.N.Y. 2018); McGriff v.
Keyser, No. 17-CV-7307, 2019 WL 6033421, at *8-9 (S.D.N.Y. Nov. 13, 2019), while others have held that “a prison official
who denies an inmate's administrative appeal from a disciplinary hearing can be held liable under § 1983 only if the violation
complained of was still ‘ongoing’ at the time of the appeal, such that he or she could have remedied the violation directly,”
Jamison, 2012 WL 4767173, at *4; see also Ortiz, 2015 WL 1427247, at *14; Koehl v. Bernstein, No. 10-CV-3808, 2011
WL 2436817, at *10 (S.D.N.Y. June 17, 2011), adopted by 2011 WL 4390007 (S.D.N.Y. Sept. 21, 2011). This Court finds the
latter view persuasive, but need not reach a conclusion as to Venettozzi's personal involvement at this juncture, because in any
event, the split in guidance entitles Venettozzi to qualified immunity. See Colon, 344 F. Supp. 3d at 631 (“Venettozzi is entitled
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to qualified immunity for his affirmance of [p]laintiff's Tier III Hearing disposition.”); see also McGriff, No. 17-CV-7307,
2019 WL 6033421, at *9 (S.D.N.Y. Nov. 13, 2019) (same); Lebron, 2017 WL 365493, at *9 (finding that “qualified immunity
attaches” because “not every reasonable official would understand that” “failure to correct a procedural due process violation
on appeal violates an inmate's constitutional rights”). Accordingly, all claims for relief against Venettozzi are dismissed.
B. Plaintiff's Second Claim for Relief: Deliberate Indifference to Plaintiff's Medical Needs (Eighth Amendment)
Plaintiff alleges that Rossy violated his Eighth Amendment rights when she confiscated Plaintiff's back and knee braces. (Am.
Compl. at 21-22). “In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must
prove ‘deliberate indifference to his serious medical needs.’ ” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting
Estelle, 429 U.S. at 104) (brackets omitted)). “A plaintiff can prevail on a deliberate indifference to medical needs claim under
the Eighth Amendment by satisfying a two-prong test.” Sutton v. Rodriguez, No. 18-CV-01042, 2020 WL 5504312, at *4
(S.D.N.Y. Sept. 8, 2020).
*7 The first prong is objective and requires that the alleged deprivation in medical care be sufficiently
serious. A deprivation in medical care is sufficiently serious if (1) the prisoner was actually deprived of
adequate medical care and (2) the inadequacy in medical care is sufficiently serious. The latter inquiry
contemplates a condition of urgency that may result in degeneration or extreme pain.... The second
prong of the deliberate indifference test under the Eighth Amendment is subjective and requires that
the plaintiff demonstrate that the defendant had a sufficiently culpable state of mind. A defendant had
a sufficiently culpable state of mind if he acted or failed to act while actually aware of a substantial
risk that serious inmate harm will result.
Id. *4-5. (internal citations and quotation marks omitted). Plaintiff satisfies neither prong.
First, Plaintiff does not allege a “sufficiently serious” deprivation of medical care. Id. at *4. A “sufficiently serious” deprivation
results in “more than minor discomfort or injury.” Cain v. Jackson, No. 05-CV-3914, 2007 WL 2193997, at *5 (S.D.N.Y.
July 27, 2007). To be “sufficiently serious,” the deprivation must create a “condition of urgency, one that may produce death,
degeneration, or extreme pain.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). Although Plaintiff apparently suffers
from some degree of back and knee pain, he does not specify the conditions for which he was prescribed braces as treatment. 10
Notably, Plaintiff does not allege that he suffered any discomfort, let alone any “condition[s] of urgency,” after his braces
were confiscated. Martin v. Mihalik, No. 19-CV-7979, 2021 WL 1738458, at *8 (S.D.N.Y. May 3, 2021) (finding that plaintiff
failed to allege objective prong of Eighth Amendment standard where plaintiff did not allege any harm as a result of alleged
deprivation); Sutton, 2020 WL 5504312, at *5.
Second, Plaintiff does not allege that Rossy acted with a “sufficiently culpable state of mind” when she confiscated Plaintiff's
back and knee braces. Sutton, 2020 WL 5504312, at *5. Plaintiff's own allegations show that Rossy confiscated these items not
because she intended to inflict pain, but rather, because Plaintiff's medical permit had expired. 11 (Am. Compl. ¶ 5). Further,
Plaintiff does not allege that Rossy had any reason to believe that her actions would result in a “substantial risk [of] serious
inmate harm.” Sutton, 2020 WL 5504312, at *5. It follows, then, that Plaintiff's deliberate indifference claim against Rossy
is dismissed. See Aikens v. Rao, No. 13-CV-1088S, 2015 WL 5919950, at *8 (W.D.N.Y. Oct. 9, 2015) (dismissing plaintiff's
deliberate indifference claim arising from confiscation of back brace due to lack of permit).
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C. Plaintiff's Third Claim for Relief: Conditions of Plaintiff's Confinement (Eighth Amendment)
*8 Next, Plaintiff brings an Eighth Amendment conditions of confinement claim against Gutwein 12 in connection with
the sanctions that he imposed following his determination that Plaintiff violated DOCCS's drug policy. (Am. Compl. ¶ 36).
Specifically, Plaintiff alleges that the removal of his personal belongings from his cell following the guilty determination violated
the Eighth Amendment. (Id.). To state an Eighth Amendment conditions of confinement claim, Plaintiff “must satisfy both an
objective test and a subjective test.” Gunn v. Annucci, No. 20-CV-02004, 2021 WL 1699949, at *8 (S.D.N.Y. Apr. 29, 2021)
(quoting Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 2006)). “Under the first step of the analysis, conditions of confinement
are objectively serious if the plaintiff can show that ‘the conditions, either alone or in combination, pose an unreasonable risk
of serious damage to his health.’ ” Id. (quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)). “This assessment is not
‘static,’ as ‘[t]he conditions themselves must be evaluated in light of contemporary standards of decency.’ ” Id. (quoting Blissett
v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)). “At the motion to dismiss stage, the Court must determine whether the plaintiff's
allegations lead to the plausible inference that the plaintiff was ‘deprived of [his] basic human needs—e.g., food, clothing,
shelter, medical care, and reasonable safety’ or was ‘exposed to conditions that pose[d] an unreasonable risk of serious damage
to [his] future health.’ ” Id. (quoting Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (internal quotation marks omitted)).
As for the second step of the analysis, the subjective element, a defendant: cannot be found liable under
the Eighth Amendment for denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.
Darnell v. Pineiro, 849 F.3d 17, 32 (2d Cir. 2017) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994) (internal quotations
omitted)); see also Reyes v. Wenderlich, 779 F. App'x 55, 56 (2d Cir. 2019) (noting that a plaintiff “must demonstrate that,
subjectively, prison staff acted with deliberate indifference ... in failing to address the purported danger” (internal quotation
marks omitted)). Plaintiff satisfies neither test.
First, the temporary confiscation of personal belongings did not subject Plaintiff to “an unreasonable risk of serious damage to
his health,” and therefore, did not run afoul of the Eighth Amendment. Schult, 717 F.3d at 125. Courts in the Second Circuit
have consistently expressed this view. See, e.g., Dixon v. Goord, 224 F. Supp. 2d 739, 748-49 (S.D.N.Y. 2002) (“[A]llegations
of having been cut off from ... personal property ... are not violations of the Eighth Amendment.”); Myers v. City of N.Y., No.
11-CV-8525, 2012 WL 3776707, at *8 (S.D.N.Y. Aug. 29, 2012) (“[C]ourts are extremely reluctant ... to find constitutional
violations based on temporary deprivations of personal hygiene and grooming items.” (citation omitted)); Taylor v. Halladay,
No. 09-CV-0385, 2010 WL 3120036, at *8 (N.D.N.Y. July 1, 2010), adopted by 2010 WL 3155730 (N.D.N.Y. Aug. 9, 2010)
(finding that failure to allow plaintiff to possess personal photographs did not violate the Eighth Amendment); Johnson v.
Coughlin, No. 90-CV-1731, 1992 WL 6227, at *6 (S.D.N.Y. Jan. 3, 1992) (finding that denial of certain personal belongings
and books did not violate the Eighth Amendment);
*9 Further, although the temporary deprivation of clothing may constitute an Eighth Amendment violation under certain
circumstances, it does not amount to one on these facts. See Jean-Laurent v. Lawrence, No. 12-CV-1502, 2013 WL 1129813,
at *6 (S.D.N.Y. Mar. 19, 2013) (“Clothing is one of the necessities of civilized life, and while prisoners are not entitled to a
daily change of clothes, at some point the denial of clean clothes could be a deprivation of constitutional magnitude.” (quoting
Williams v. DeTella, No. 95-CV-6498, 1997 WL 603884, at *2 (N.D. Ill. Sept. 23, 1997)). To amount to an Eighth Amendment
violation, a plaintiff must allege that that the clothing deprivation “posed a threat to his health and safety.” Trammell v. Keane,
338 F.3d 155, 165 (2d Cir. 2003). Plaintiff has not alleged such a threat here.
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Second, Plaintiff does not allege that Gutwein “had a culpable state of mind” when he ordered the confiscation of Plaintiff's
personal belongings. Abdur-Raheem v. Caffery, No. 13-CV-6315, 2015 WL 667528, at *4 (S.D.N.Y. Feb. 17, 2015).
Undoubtedly, Gutwein knew that the imposed sanctions would cause Plaintiff some degree of discomfort. But the deprivation of
certain privileges, including Plaintiff's possession and use of personal property, was merely a “normal incident[ ]” of disciplinary
confinement. Dixon, 224 F. Supp. 2d at 748. Allegations that Gutwein imposed run-of-the-mill sanctions for Plaintiff's violation
of DOCCS's drug policy, without more, does not evince his intent to subject Plaintiff to “a substantial risk of serious harm.”
Gunn, 2021 WL 1699949, at *9.
Accordingly, Plaintiff's conditions of confinement claim against Gutwein is dismissed.
D. Plaintiff's Fourth Claim for Relief: Procedural Due Process Violations (Fourteenth Amendment)
Plaintiff also brings a Fourteenth Amendment procedural due process claim against Gutwein and Rivera. 13 “[T]o present a
[procedural] due process claim, a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s)
deprived him of that interest as a result of insufficient process.” Keesh, 2021 WL 639530, at *7 (internal citations and quotation
marks omitted, alternations in original). “A prisoner's liberty interest is implicated by prison disciplinary proceedings only if
the discipline imposes ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ ”
Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). “Indeed, dismissal has been found appropriate where the period of
confinement in relation to disciplinary hearings is shorter than 101 days.” Id. (citing Washington v. Afify, 681 F. App'x 43, 45 (2d
Cir. 2017)); see also Barnes v. Storks, No. 95-CV-4891, 1996 WL 648956, at *3 (S.D.N.Y. Nov. 6, 1996) (no protected liberty
interest in inmate's twenty-one-day confinement in keeplock); Camacho v. Keane, No. 95-CV-0182, 1996 WL 204483, at *2
(S.D.N.Y. Apr. 25, 1996) (no protected liberty interest in inmate's forty-day confinement in keeplock); Schmelzer v. Norfleet,
903 F. Supp. 632, 634 (S.D.N.Y. 1995) (no protected liberty interest in inmate's eleven-day confinement in keeplock).
*10 Here, Plaintiff received sixty days’ “keeplock” confinement. (Am. Compl. ¶ 35). This sanction does not amount to the
type of “atypical and significant hardship” that would implicate a protected liberty interest. Sandin, 515 U.S. at 484; Walker v.
Caban, No. 08-CV-3025, 2008 WL 4925204, at *11 (S.D.N.Y. Nov. 19, 2008), adopted by 2008 WL 5148794 (S.D.N.Y. Dec. 5,
2008) (holding ninety days in solitary confinement did not implicate protected liberty interest). Nor does Plaintiff's ninety-day
loss of certain privileges. (Am. Compl. ¶ 35); Sandin, 515 U.S. at 485 (holding that loss of commissary, recreation, package, and
telephone privileges does not amount to an atypical and significant deprivation); Boyd v. Doe #1, No. 18-CV-1333, 2019 WL
5287973, at *12 (N.D.N.Y. Oct. 18, 2019) (holding that alleged deprivation of personal property and other privileges for ninety
days did not implicate protected liberty interest). Therefore, Plaintiff has failed to establish that he possessed a liberty interest.
Even if the Court assumes that Plaintiff possessed a liberty interest, Gutwein afforded him sufficient process. “Although a
New York inmate has a due process right to call witnesses, that right is not absolute.” Barnes v. Henderson, 628 F. Supp. 2d
407, 411 (W.D.N.Y. 2009) (internal citation omitted). “Prison officials must have the necessary discretion to keep the hearing
within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority ....” Id. (internal
quotations omitted); see also Scott v. Kelly, 962 F.2d 145, 146 (2d Cir. 1992) (“It is well settled that an official may refuse to
call witnesses as long as the refusal is justifiable.”). Further, “[t]he requirements of due process are satisfied if ‘some evidence’
supports the conclusion of the disciplinary hearing.” Brooks v. Prack, 77 F. Supp. 3d 301, 315 (W.D.N.Y. 2014).
At the disciplinary hearing, Gutwein afforded Plaintiff the opportunity to cross-examine the prosecuting witnesses against him
(Deegan and Dahl). (Am. Compl. ¶¶ 27-30). Plaintiff was also provided with several of the documents that he requested. (Id.
¶ 18). Further, Plaintiff had the opportunity to question a representative of the company that manufactured the Indiko Plus
machine. (Id. ¶ 32). Gutwein denied Plaintiff certain witnesses and documents; but he was merely exercising his “necessary
discretion” in doing so. Barnes, 628 F. Supp. 2d at 411. And given Plaintiff's positive drug test and the witnesses’ testimony
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against him, there was certainly “some evidence” to support Gutwein's guilty determination. Brooks, 77 F. Supp. 3d at 315.
Therefore, Plaintiff's disciplinary hearing was well within the Fourteenth Amendment's guardrails.
Plaintiff also insists that Rivera's attempt to adjourn Plaintiff's disciplinary hearing constituted a procedural due process
violation. (Am. Compl. at 24, ¶ 34). The gist of the allegation is that Rivera lied about Gutwein's availability in requesting that
Plaintiff's hearing be adjourned to November 9, 2019. (Id. at 24). But in any event, Plaintiff's hearing occurred as scheduled on
November 7, 2019. (Id.). And even assuming arguendo that Plaintiff's had a protected liberty interest, which he did not, Plaintiff
fails to articulate how an adjournment request that was denied could have deprived him of sufficient process.
Accordingly, the procedural due process claims against Gutwein and Rivera are dismissed.
E. Plaintiff's Fifth Claim for Relief: Retaliation (First Amendment)
“[T]o sustain a First Amendment retaliation claim, a prisoner must demonstrate the following: (1) that the speech or conduct at
issue was protected; (2) that the defendant took adverse action against the plaintiff; and (3) that there was a causal connection
between the protected speech and the adverse action.” Handle v. Alexander, No. 10-CV-9235, 2011 WL 1226228, at *2
(S.D.N.Y. Mar. 22, 2011) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)). An action is “adverse” when it “would
deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights ....” Ruggiero v. Cty.
of Orange, No. 19-CV-3632, 2020 WL 5096032, at *7 (S.D.N.Y. Aug. 28, 2020) (quoting Davis v. Goord, 320 F.3d 346, 353
(2d Cir. 2003)). Conduct short of this standard is “simply de minimis and ... outside the ambit of constitutional protection.”
Id. (quoting Davis, 320 F.3d at 353). Likewise, under the third element, the “allegations must support an inference that the
protected conduct was ‘a substantial or motivating factor for the adverse actions taken by prison officials.’ ” Dorsey v. Fisher,
468 F. App'x 25, 27 (2d Cir. 2012) (quoting Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003)). Bearing in mind that “[c]ourts
properly approach prisoner retaliation claims with skepticism and particular care[ ] because virtually any adverse action taken
against a prisoner by a prison official ... can be characterized as a constitutionally proscribed retaliatory act,” Davis, 320 F.3d
at 352 (internal quotation marks omitted), “[c]onclusory allegations will not suffice; instead, a prisoner's claim for retaliation
must be supported by specific and detailed factual allegations.” Vogelfang v. Capra, 889 F. Supp. 2d 489, 517 (S.D.N.Y. 2012)
(internal quotation marks omitted).
*11 Plaintiff alleges that, in retaliation for filing a grievance against Rossy, all Defendants 14 conspired to have Plaintiff's
urine tested for drugs, which resulted in allegedly flawed disciplinary proceedings against him. (Am. Compl. at 22-25). 15
Plaintiff undoubtedly engaged in protected conduct when he filed a grievance against Rossy. See Davis, 320 F.3d at 352-53
(“[T]he filing of prison grievances is a constitutionally protected activity.”). But it is a closer call whether being subjected to
a single urine test constitutes an adverse action. Compare Holmes v. Fischer, No. 09-CV-00829, 2016 WL 552962, at *10
(W.D.N.Y. Feb. 10, 2016) (“Insofar as urinalysis involves both embarrassment and potential punishment, being required to
submit to a urinalysis constitutes an adverse action.” (internal quotation marks and citations omitted)), with Bumpus v. Canfield,
495 F. Supp. 2d 316, 327 (W.D.N.Y. 2007) (“Urine tests are a fact of prison life, and I do not find that one urine test would chill
a prisoner of ordinary firmness from filing grievances.” (internal citations omitted)), and Fann v. Arnold, No. 14-CV-6187,
2016 WL 2858927, at *3 (W.D.N.Y. May 16, 2016) (“[T]he fact that Plaintiff was subjected to a single urine test does not
constitute an adverse action that would deter an inmate from asserting his or her rights.”). The Court, however, need not and
does not wade into this debate.
Even assuming, arguendo, that a single urine test constitutes an adverse action, Plaintiff fails to satisfy the third prong of the
retaliation test. Namely, Plaintiff fails to allege “a causal connection” between his grievance against Rossy and his subsequent
urine test. Handle, 2011 WL 1226228, at *2. “To sufficiently allege a causal connection, [Plaintiff's] allegations must support
an inference that the protected conduct was ‘a substantial or motivating factor for the adverse actions taken by prison officials.’
” Dorsey v. Fisher, 468 F. App'x 25, 27 (2d Cir. 2012) (quoting Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003)). “Plaintiff
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need not provide direct evidence of a retaliatory motive to support a retaliation claim.” Hammock v. Pierce, No. 15-CV-09052,
2018 WL 2108244, at *8 (S.D.N.Y. May 7, 2018) (citing Bennett v. Goord, 343 F.3d at 139). “Rather a retaliatory motive may be
inferred from a number of circumstantial factors, including, inter alia, ‘(i) the temporal proximity between the protected activity
and the alleged retaliatory act; (ii) the inmate's prior good disciplinary record; (iii) vindication at a hearing on the matter, and
(iv) statements by the defendant concerning his motivation.’ ” Id. (quoting Burton v. Lynch, 664 F. Supp. 2d 349, 367 (S.D.N.Y.
2009) (internal quotation marks omitted)).
*12 Here, Plaintiff filed a grievance against Rossy on September 10, 2019. (Am. Compl. ¶ 9). Then, on October 11, 2019,
Plaintiff was randomly selected for a urine test. (Id. ¶¶ 11-12). Although “the passage of approximately one month between the
protected activity and the retaliation is a sufficiently short period of time,” Plaintiff's allegations nonetheless fail to establish
a causal link. White v. Dep't of Corr. Servs., 814 F. Supp. 2d 374, 390 (S.D.N.Y. 2011). Indeed, Plaintiff alleges that he was
randomly selected for urine testing, i.e., he was selected by a computer, not Defendants. (Am. Compl. ¶¶ 12, 29). Further,
Plaintiff does not allege that anyone other than Rossy was aware of the grievance filed against her. See Mateo v. Dawn, No. 14-
CV-2620, 2016 WL 5478431, at *8 (S.D.N.Y. Sept. 28, 2016) (finding no causation where plaintiff did not “allege or otherwise
suggest that Defendants even knew of the complaints filed against other correction officers”); see also Jackson v. Prack, No.
16-CV-7561, 2019 WL 6119010, at *10 (S.D.N.Y. Nov. 18, 2019) (finding no causation where plaintiff did “not allege that
either [d]efendant knew of the grievance”). Therefore, Plaintiff fails to establish any plausible connection between Plaintiff's
protected activity and his subsequent selection for urine testing.
Accordingly, Plaintiff's retaliation claim against Rossy, Gutwein, Rivera, Deegan, and Dahl is dismissed.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss Plaintiff's First, Third, Fourth, and Fifth Claims
for Relief with prejudice, as any amendment would be futile. See Reed v. Friedman Mgt. Corp., 541 F. App'x 40, 41 (2d Cir.
2013) (“District courts should frequently provide leave to amend before dismissing a pro se complaint. However, leave to amend
is not necessary when it would be futile.” (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000))).
The Court GRANTS Defendants’ motion to dismiss Plaintiff's Second Claim for Relief without prejudice. Plaintiff may file a
Second Amended Complaint, should he be so advised, within 30 days from the date of this Order to address only the Second
Claim for Relief pleading deficiencies identified herein and for no other purpose. Plaintiff is reminded that if he chooses to file a
Second Amended Complaint, the Second Amended Complaint will completely replace, not supplement, the original complaint.
Therefore, any facts or claims that Plaintiff wishes to maintain concerning the Second Claim for Relief and that were not herein
dismissed with prejudice must be included in the Second Amended Complaint.
The Clerk is instructed to terminate the motion sequence pending at Doc. 61 and to mail a copy of this Memorandum Opinion
and Order to Plaintiff.
SO ORDERED:
All Citations
Not Reported in Fed. Supp., 2021 WL 2581340
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Footnotes
1 Although Plaintiff spells Rossy's name as “Rossi” throughout the Amended Complaint (see generally Am. Compl.),
it appears, based on Defendants’ briefs and publicly available court filings, that “Rossy” is the correct spelling. (See
generally Defs. Br., Defs. Reply); see also Bonie v. Annucci, No. 20-CV-640, 2020 WL 2489063, at *3 (S.D.N.Y. May
14, 2020); Matthews v. Barq, No. 18-CV-855, 2021 WL 1582255, at *1 (N.D.N.Y. Jan. 12, 2021), adopted by 2021 WL
1135452 (N.D.N.Y. Mar. 25, 2021).
2 To the extent that Plaintiff brings claims for failure to comply with DOCCS directives or related regulations, those
claims are not actionable, and are therefore, dismissed. See Hyman v. Holder, No. 96-CV-7748, 2001 WL 262665, at *4
(S.D.N.Y. Mar. 15, 2001) (holding that failure to follow a DOCCS prison regulation “does not give rise to a constitutional
violation”); see also Rasheen v. Adner, 356 F. Supp. 3d 222, 236 (N.D.N.Y. 2019) (“[A] Section 1983 claim brought
in federal court is not the appropriate forum to raise violations of prison regulations.”); Soto v. Walker, 44 F.3d 169,
173 (2d Cir. 1995) (“[T]he violation of 7 N.Y.C.R.R. § 251-5.1(a) alone would not be enough generally to establish a
constitutional claim.”).
3 Plaintiff, through his opposition brief, purports to move for a default judgment against Defendants. (See Pl. Opp. at 4.).
First, Plaintiff's motion is incorrectly predicated on Defendants’ failure to answer the Amended Complaint. Defendants,
obviously, have moved to dismiss the Amended Complaint. Second, a motion for a default judgment must be brought in
a separate motion. Cf. Keesh v. Quick, No. 19-CV-08942, 2021 WL 639530, at *12 (S.D.N.Y. Feb. 17, 2021) (denying
motion for Rule 11 sanctions made in opposition brief); Corr. Officers Benevolent Ass'n of Rockland Cty. v. Kralik, No.
04-CV-2199, 2011 WL 1236135, at *1 n.2 (S.D.N.Y. Mar. 30, 2011) (declining to consider a “cross-motion” where
plaintiffs requested relief via an opposition to a motion, without filing a notice of motion). Plaintiff's motion for a
default judgment is therefore procedurally improper and denied. To the extent possible, the Court will consider Plaintiff's
“objections” as opposition to the motion to dismiss.
4 Plaintiff informed the Court, by letter dated May 16, 2021, that he is now incarcerated in Eastern Correctional Facility.
(Doc. 76).
5 Where Plaintiff does not cite to numbered paragraphs in the Amended Complaint, citations to page numbers in the
Amended Complaint correspond to the pagination generated by ECF.
6 Plaintiff alleges that the Indiko Plus machine used for his drug test was known to produce unreliable test results. (Am.
Compl. at 16). Specifically, in September 2019—before Plaintiff's drug test—Plaintiff alleges that Annucci ordered that
sanctions connected to positive test results for suboxone and buprenorphine produced by the Indiko Plus machine be
reversed. (Id.). And in November 2019, Annucci allegedly issued a statewide memorandum regarding false positive test
results produced by the Indiko Plus machine. (Id. at 19).
7 Neither Plaintiff, nor Defendants, identify the drug for which Plaintiff's urine sample allegedly tested positive. But based
on the line of questioning directed at the representative for the company that manufactures the Indiko Plus machine, it
appears that Plaintiff may have tested positive for marijuana. (Am. Compl. ¶ 32).
8 “The disciplinary hearing or superintendent's hearing must be completed within 14 days following the writing of the
misbehavior report unless otherwise authorized by the commissioner or his designee. Where a delay is authorized, the
record of the hearing should reflect the reasons for any delay or adjournment, and an inmate should ordinarily be made
aware of these reasons unless to do so would jeopardize institutional safety or correctional goals.” N.Y. Comp. Codes
R. & Regs. tit. 7, § 251.1-5.1(b) (emphasis added).
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9 DOCCS Directive No. 4937 governs urinalysis testing of incarcerated individuals at DOCCS facilities. See Taylor v.
New York Dep't of Corr. Servs., No. 10-CV-140, 2012 WL 913678, at *3 (N.D.N.Y. Feb. 23, 2012), adopted sub nom.
by Taylor v. New York Dep't of Corr., No. 10-CV-140, 2012 WL 913564 (N.D.N.Y. Mar. 16, 2012).
10 The Court is skeptical that Plaintiff's knee problem would constitute a “serious medical need[ ].” Chance, 143 F.3d at
702; see, e.g., Dinkins v. New York, No. 19-CV-08447, 2020 WL 5659554, at *9 (S.D.N.Y. Sept. 23, 2020) (finding
that plaintiff's “knee problem” did not constitute a “serious medical need”); Taylor v. Kurtz, No. 00-CV-700, 2004
WL 2414847, at *4 (W.D.N.Y. Oct. 28, 2004) (“Courts in this circuit ... have often considered knee injuries and have
consistently found that such injuries are insufficient to support a § 1983 claim based on deliberate indifference under the
Eighth Amendment.”); Sharp v. Jeanty, No. 93-CV-0220, 1993 WL 498095, at *2 (S.D.N.Y. Nov. 30, 1993) (finding that
knee pain, which was repeatedly ignored and ultimately required surgery, does not alone “meet the Eighth Amendment
standard”). As for Plaintiff's back pain, absent more detailed allegations regarding the associated medical issue, the Court
is unable to opine on its severity. See Mendoza v. McGinnis, No. 05-CV-1124, 2008 WL 4239760, at *10 (N.D.N.Y.
Sept. 11, 2008) (“The question of whether chronic back pain can rise to a level of constitutional significance is dependent
upon the circumstances of the particular case presented.”).
11 Plaintiff does not allege that Rossy caused his back and knee braces to go missing from the H-Block. He merely alleges
that she confiscated them. (Am. Compl. ¶ 5). That Plaintiff's braces ultimately went missing does not factor into the
Court's analysis of Rossy's liability, as she is not alleged to have been personally involved in that incident. See Boley,
687 F. App'x at 41 (citing Wright, 21 F.3d at 501) (“To establish a § 1983 claim, a plaintiff must show the defendants’
personal involvement in the alleged constitutional violation.”); see also Alfaro Motors, Inc., 814 F.2d at 886 (quoting
Black, 534 F.2d at 527-28) (failure to allege personal involvement renders a “complaint ‘fatally defective’ on its face”).
12 Plaintiff also brings this claim against Deegan, Dahl, and Royce. But, as discussed in § I.A.1., supra, all claims for relief
against Royce are dismissed for lack of personal involvement. And none of Plaintiff's allegations involving Deegan and
Dahl have anything to do with Plaintiff's conditions of confinement. The Eighth Amendment conditions of confinement
claim for relief against Deegan, Dahl, and Royce is, therefore, dismissed. See Boley, 687 F. App'x at 41 (2d Cir. 2017)
(citing Wright, 21 F.3d at 501) (“To establish a § 1983 claim, a plaintiff must show the defendants’ personal involvement
in the alleged constitutional violation.”); see also Alfaro Motors, Inc., 814 F.2d at 886 (quoting Black, 534 F.2d at 527-28)
(failure to allege personal involvement renders a “complaint ‘fatally defective’ on its face”).
13 Although both Deegan and Dahl served as witnesses at Plaintiff's disciplinary hearing, Plaintiff does not explain how
their roles in the hearing contributed to its alleged procedural defects. Accordingly, Plaintiff fails to state Deegan and
Dahl's personal involvement in the alleged procedural due process violations. The Fourteenth Amendment claim for
relief against Deegan and Dahl is, therefore, dismissed. See Boley, 687 F. App'x at 41 (citing Wright, 21 F.3d at 501)
(“To establish a § 1983 claim, a plaintiff must show the defendants’ personal involvement in the alleged constitutional
violation.”); see also Alfaro Motors, Inc., 814 F.2d at 886 (quoting Black, 534 F.2d at 527-28) (failure to allege personal
involvement renders a “complaint ‘fatally defective’ on its face”).
14 As Annucci, Royce, and Venettozzi are dismissed due to lack of personal involvement, see supra, § I.A.1., the retaliation
and conspiracy claims only apply to Rossy, Gutwein, Rivera, Deegan, and Dahl.
15 To the extent Plaintiff brings a § 1983 conspiracy claim, his “allegations do not provide a factual basis to support a claim
that Defendants engaged in a conspiracy.” Jackson, 2019 WL 6119010, at *11; see also Ciambriello v. Cty. of Nassau,
292 F.3d 307, 325 (2d Cir. 2002) (in the context of § 1983 conspiracy claim, “complaints containing only conclusory,
vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional
rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances
of misconduct.” (internal quotation marks omitted)). Moreover, “any factual allegations that Defendants conspired
together are legally insufficient, because the intracorporate immunity doctrine generally bars conspiracy claims against
employees of the same entity.” Ortiz v. Ledbetter, No. 19-CV-2493, 2020 WL 2614771, at *6 (S.D.N.Y. May 22, 2020).
“And there is no suggestion here that any exception to the doctrine applies.” Id. Lastly, “because there was no underlying
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violation, the conspiracy claim must fail.” Jackson, 2019 WL 6119010, at *11; Mitchell v. Cty. of Nassau, 786 F. Supp.
2d 545, 564 (E.D.N.Y. 2011) (“[A] § 1983 conspiracy claim fails as a matter of law where there is no underlying
constitutional violation.”). Accordingly, Plaintiff's conspiracy claim against Rossy, Gutwein, Rivera, Deegan, and Dahl
is dismissed.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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McGee v. Pallito, Not Reported in F.Supp.2d (2011)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2011 WL 6291954
Only the Westlaw citation is currently available.
United States District Court, D. Vermont.
David McGEE, Plaintiff,
v.
Andrew PALLITO, Robert Hofmann, Kurt Kuehl, Robert McDougall, Marie Salem, Robert Kupec, Kevin Oddy,
Phil Fitzpatrick, Brian Reed, Cindy Modiano, Mary Ellen Cross, Richard Byrne, David Talcott, Greg Hale, Tim
Harrington, Philip Brochu, Phillip Quijano, Joseph Sylvestri, Marshall Rich, David Martinson, Michael Bellizzi,
Scott Morley, Anita Carbonell, Ellen McWard, Dominic Domato, Mark Potanas, Christina Granger, James
Kamel, Joshua Rutherford, Michael Arace, James Edwards, Monique Sullivan, Correctional Officer Simmons,
Correctional Officer Camp, Delores Burroughs–Biron, M.D., Nurse Manager Doe, Nurse(s) Doe; 00002;;ON;
canonical_name::ANDREW PALLITO ROBERT HOFMANN KURT KUEHL ROBERT MCDOUGALL
MARIE SALEM ROBERT KUPEC KEVIN ODDY PHIL FITZPATRICK BRIAN REED CINDY MODIANO
MARY ELLEN CROSS RICHARD BYRNE DAVID TALCOTT GREG HALE TIM HARRINGTON PHILIP
BROCHU PHILLIP QUIJANO JOSEPH SYLVESTRI MARSHALL RICH DAVID MARTINSON MICHAEL
BELLIZZI SCOTT MORLEY ANITA CARBONELL ELLEN MCWARD DOMINIC DOMATO MARK
POTANAS CHRISTINA GRANGER JAMES KAMEL JOSHUA RUTHERFORD MICHAEL ARACE
JAMES EDWARDS MONIQUE SULLIVAN CORRECTIONAL OFFICER SIMMONS CORRECTIONAL
OFFICER CAMP DELORES BURROUGHS BIRON M D NURSE MANAGER DOE NURSE(S) DOE;;, and
Prison Health Service, Inc.;00003;;OM;canonical_name::PRISON HEALTH SERVICE INC;;, Defendants.
Civil Action No. 1:10–CV–11.
|
Aug. 3, 2011.
Attorneys and Law Firms
David McGee, Beattyville, KY, pro se.
Jana M. Brown, Megan J. Shafritz, Vermont Office of the Attorney General, Montpelier, VT, for Defendants.
REPORT AND RECOMMENDATION (Docs. 58, 62, 79 and 82)
JOHN M. CONROY, United States Magistrate Judge.
*1 Plaintiff David McGee, a Vermont inmate proceeding pro se, claims that his constitutional rights have been violated in
several respects during the course of his incarceration. Specifically, his 116–page Complaint alleges denial of basic sanitation;
retaliatory transfers; denial of adequate clothing and shelter; denial of prescription medications; retaliatory destruction of legal
materials; and systematic deprivations of personal property. Defendants have moved to dismiss the Complaint, arguing that
McGee fails to allege facts that rise to the level of unconstitutional conduct, and that with respect to certain Defendants, he
has failed to establish sufficient personal involvement in the alleged wrongdoing. In addition, the State of Vermont Defendants
contend that they are entitled to qualified immunity and sovereign immunity.
For the reason set forth below, I recommend that the motions to dismiss be GRANTED in part and DENIED in part.
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Factual Background
McGee is a self-described “experienced inmate litigator who believes in using the law and court system to hold prison officials
accountable for their past misconduct and to discourage them from future abuses.” (Doc. 71 at 1.) In the instant case, he
brings thirteen separate causes of action. The Court will not recount all of the factual allegations set forth in his 846–paragraph
Complaint, but will instead summarize his claims. For the limited purpose of ruling on the pending motions to dismiss, the facts
alleged in the Complaint are accepted as true.
In Count 1, McGee claims that for a period of time while incarcerated at Vermont's Northwest State Correctional Facility
(“NWSCF”), he was barred from using the restroom more than once every two hours during the night. On at least one occasion,
he was denied immediate access to a restroom and had to urinate into his coffee mug. He was subsequently informed that
he suffered from an enlarged prostate that could cause him to urinate frequently. McGee now claims that the “two-hour rule”
violated his constitutional rights.
Count 2 alleges a retaliatory transfer. As part of civil litigation initiated by McGee in state court, Assistant Attorneys General
Kurt Kuehl and Robert McDougall noticed his deposition. Because the deposition was scheduled to be taken at a facility in
South Burlington, and McGee was being housed out of state, a prison transfer was required. McGee claims that during his time
at the out-of-state facility, he “had acquired a great deal of personal property not allowed in Vermont prisons, had a prison job,
and lived in an ‘honor dorm.’ “ (Doc. 7 at ¶ 134.) He therefore filed an objection to the deposition notice under Vermont Rule
of Civil Procedure 30(a), which provides that inmate depositions “may be taken only by leave of a Superior Court judge on
such terms as the judge prescribes,” and proposed that the deposition be conducted via telephone. Before the state court could
rule on his objection, however, he was transferred to Vermont.
*2 As a result of his transfer, McGee was allegedly deprived of his legal materials. He also claims that once in Vermont, he
was subjected to further transfers within only a few days and “under harsh conditions.” (Id. at ¶ 183.) His legal claim is that
“[t]he temporal proximity between Plaintiff's legal activities and his transfer from Kentucky to Vermont for a deposition that
was not authorized by the superior court ... establishes a direct causal connection between Plaintiff's protected activity and the
adverse actions taken against Plaintiff by Defendants.” (Id. at ¶ 184 .)
Count 3 alleges that McGee was denied seasonally-appropriate clothing for a period of time. He claims that without proper
clothing, he was exposed to sub-freezing temperatures when accessing the cafeteria and other prison buildings, could not
participate in outdoor recreation, and became ill. Count 3 also claims that while he was incarcerated at the Chittenden Regional
Correctional Facility (“CRCF”), Department of Corrections (“DOC”) officials would not allow him to keep the string that held
up his sweatpants.
Count 4 claims that during a 24–hour “lockdown drill,” water to all cells was turned off for approximately 20 hours. Inmates
were provided one eight ounce cup of milk with breakfast, and eight ounce cups of Kool–Aid with lunch and dinner. McGee
was also provided a four ounce cup of water in the mid-afternoon. He now claims that due to an intestinal condition, he became
constipated and later suffered painful bowel movements. He also alleges that without flushable toilets, toilets in the cells and
the common bathrooms emitted noxious odors that made him sick, and that “exposed raw human excrement constituted a
biohazard.” (Id. at ¶ 267.)
Count 5 is another retaliatory transfer claim, again arising out of civil litigation initiated by McGee in state court. Jury selection
was scheduled, but was “effectively canceled” after the parties submitted summary judgment motions. (Id. at ¶ 313.) McGee
alleges that, notwithstanding the cancellation, AAG Kuehl requested the DOC's out of state unit to transfer McGee back to
Vermont for jury selection. The transfer itself caused McGee great physical discomfort. Once he arrived in Vermont, he was
allegedly deprived of adequate bedding and clothing, lost some of his personal property, had fewer privileges than those he had
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been enjoying while incarcerated out of state, and when he inquired as to the reason for the transfer, was allegedly told that the
DOC was “just yanking [his] chain.” (Id. at ¶ 349.)
Count 6 alleges a third retaliatory transfer. In this instance, McGee claims that he was transferred from CRCF to Southern State
Correctional Facility (“SSCF”) in retaliation for filing a series of grievances. At SSCF, he was forced to sleep on the floor due to
overcrowding. Overcrowding also required him to spend part of his time at SSCF in segregation. While in segregation, McGee
was allegedly denied all personal property, was allowed out of his cell one hour per day, and could not go outside.
*3 In Count 7, McGee asserts that he was denied adequate shelter, and that the conditions at SSCF constituted cruel and
unusual punishment. Part of his time at SSCF was spent in a small intake unit known as the “fishtank.” McGee claims that
inmates in the fishtank were forced to sleep on dirty mattresses on the floor, with only a thin cotton blanket and no sheets. With
six or seven inmates in the fishtank at one time, the mattresses abutted each other, and inmate blankets often touched other
mattresses or the floor. There was one toilet and one sink, access to hygiene items (toothbrush, soap, etc.) only once per day,
and no other property allowed. Because of prison overcrowding, the fishtank was used as a regular living unit. McGee claims
that he spent four days in the fishtank.
Count 7 further alleges that McGee was placed in a “punitive/administrative segregation unit” due to overcrowding. When he
returned to general population, he had to sleep on the floor because of a lack of available bunks. He claims that his mattress
was on the floor, and that the mattress and linens were “frequently covered with ants, as the ground floor cells were regularly
infested .” (Id. at ¶ 397.)
Count 8 claims that while confined in the fishtank, McGee and other inmates had to use a toilet that could be viewed by female
correctional officers. Although there was a private inmate restroom in the building unit, some, though not all, correctional
officers barred fishtank inmates from using it. McGee asserts that this conduct by DOC employees denied him his limited right
to bodily privacy.
Count 9 alleges that for a period of seven days, McGee was denied a “normal” toothbrush, and was instead provided a “small,
plastic, ‘thimble-like’ tool.” (Id. at ¶¶ 418–19). McGee claims that the tool was not effective for cleaning teeth, was unsanitary
because it forced him to put his fingers inside his mouth, and caused him pain. He states that he was given the tool while in
a disciplinary segregation cell, but that he had been placed in the cell due to prison overcrowding, and not because of any
disciplinary issues.
Count 10, which alleged denial of access to legal materials, has been dismissed by the parties with prejudice. (Doc. 68.)
Count 11 claims a systematic denial of medications in violation of the Eighth Amendment. McGee alleges that he suffers
from a variety of medical conditions, including: environmental allergies; back and knee pain; intestinal pain and bleeding;
and migraine headaches; as well as depression, bipolar, and anxiety disorders. He claims that he was prescribed numerous
medications for these conditions, and that several were allowed to expire or were “wrongfully discontinued” on three separate
occasions, “causing Plaintiff to go without the medications for, at times, over a week.” (Doc. 7 at ¶ 489.) He contends that
medications were discontinued by non-prescribers (e.g. “SSCF Nurse Doe”), and that one such non-prescriber was doing so
without the prescribers' permission in order “to save money.” (Id. at ¶ 496.) McGee also claims that there was a policy of
discontinuing medications when inmates missed doses, but that some of his medications were to be taken only on an “as needed”
basis, and should not have been discontinued. (Id. at ¶¶ 494, 502.)
*4 Count 12 claims that in the course of a transfer from SSCF back to Kentucky, several of McGee's legal documents were
intentionally mishandled and/or destroyed. The documents allegedly pertained to grievances and a lawsuit McGee had brought
against SSCF for mishandling his personal property. McGee contends that “[t]he temporal proximity of Plaintiff's grievances
and property claims against SSCF staff to the actual destruction of his property and legal materials ... infers a direct causal
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connection” between the alleged destruction and “Plaintiff's protected conduct of filing grievances and lawsuits.” (Id. at ¶¶
566–67.)
Count 13, which alone consists of 195 paragraphs of facts, claims that McGee was systematically denied his personal property
without due process. McGee summarizes his claim as follows, alleging that various DOC officials and employees should be
held liable for:
(1) allowing any staff unfettered discretion in taking inmate personal property; (2) failing to provide
inmates with receipts or notice when taking possession of or confiscating inmates' property; (3) using
incorrect lists of allowed property when transferring inmates between correctional facilities; (4) sending
inmate personal property to third-parties without the inmateowner's authorization; (5) failing to hold due
process hearings after confiscating inmate property and before permanently dispossessing the inmate-
owner of the property; (6) failing to inform the inmate-owner of, and failing to document, the “final
disposition” of inmate property before destroying or disposing of it; (7) unreasonably delaying inmates'
receipt of their personal property during transfers between correctional facilities; (8) unreasonably
withholding and delaying the transfer of inmates' allowable personal property without legitimate
penological justification; (9) dispossessing those inmates who are temporarily returned to Vermont from
[out-of-state] facilities for legal proceedings of their [out-of-state] allowable property; and (10) general
and widespread mishandling of and disregard for inmate personal property that results in manifestly
predictable losses, withholding, and damage.
(Id. at ¶ 764.)
The Complaint seeks injunctive relief on some claims, and declaratory and monetary relief on all claims. McGee asserts
federal constitutional claims, pursuant to 42 U.S.C. § 1983, as well as state law claims over which he asks the Court to assert
supplemental jurisdiction under 28 U.S.C. § 1367.
Defendants are past or present employees of the State of Vermont, with the exception of Prison Health Services, Inc. (“PHS”)
and two Nurse Does. The State Defendants, except for Correctional Officer Simmons (who has not been served), have moved
to dismiss all claims. (Doc. 59.) PHS asserts that it is only named in Count 11, and therefore moves to dismiss that Count,
incorporating into its motion the arguments set forth by the State Defendants. The motions are submitted pursuant to Fed.R.Civ.P.
12(b)(6).
Discussion
I. Motion to Dismiss Standard
*5 In reviewing a motion to dismiss filed pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in
the Complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d
518, 521 (2d Cir.2006); Nechlis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005). Furthermore, pleadings drafted
by a pro se party should be liberally construed. See Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir.2006). “In order to survive
a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient ‘to raise a right of relief
above the speculative level.’ “ Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d
Cir.2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Thus, McGee must allege “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 129 S. Ct
1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556).
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II. Conditions of Confinement Claims (Counts 1, 3, 4, 7 and 9)
Defendants first challenge McGee's conditions of confinement claims. Those claims are brought under the Eighth Amendment.
The Eighth Amendment prohibits cruel and unusual punishment that involves the unnecessary and wanton infliction of pain.
Rhodes v. Chapman, 452 U.S. 337, 346 (1981). Relevant to McGee's conditions of confinement claims, the Eighth Amendment
imposes a duty on prison officials to provide humane conditions, and to ensure that inmates receive adequate food, clothing,
shelter and medical care. Farmer v. Brennan, 511 U.S. 825, 833 (1994).
In order to prevail on an Eighth Amendment claim, a plaintiff must satisfy both an objective and subjective component. First,
the deprivation must be, from an objective perspective, sufficiently serious, such that “a prison official's act or omission must
result in the denial of ‘the minimal civilized measure of life's necessities.’ “ Id. at 834 (citing Rhodes, 452 U.S. at 347); see
also Helling v. McKinney, 509 U.S. 25, 32 (1993) (citation omitted) (minimal civilized necessities include “basic human needs
—e.g., food, clothing, shelter, medical care, and reasonable safety.”). The second component requires that the prison official
have a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834. In cases such as this, that state of mind is one of deliberate
indifference to the health and safety of an inmate. Id.
A. “Two Hour Rule” (Count 1)
In Count 1, McGee claims that Correctional Officers imposed a “two hour rule,” meaning that inmates could not use the restroom
more than once every two hours between 10 p.m. and 6 a.m. As a result, McGee once had to urinate in his coffee cup. He also
claims that he was denied drinking water between these hours, and that when allowed to use the restroom, he was not allowed
to wash his hand with soap. Defendants contend that these allegations “fall so far short of the mark as to be de minimis.” (Doc.
59 at 14.)
*6 Although persons in custody have no constitutional right to use the bathroom whenever they please, see, e.g., Odom v.
Keane, 1997 WL 576088, at *4–5 (S.D.N.Y. Sept. 17, 1997), “reasonably adequate sanitation and the ability to eliminate and
dispose of one's bodily wastes without unreasonably risking contamination are basic identifiable human needs....” Whitnack
v. Douglas County, 16 F.3d 954, 958 (8th Cir.1994). Courts have generally found, however, that a temporary deprivation of
bathroom facilities does not rise to the level of an Eighth Amendment violation. See, e.g., Jones v. Marshall, 2010 WL 234990,
at *3 (S.D.N.Y. Jan. 19, 2010) (denial of right to use bathroom for 90 minutes did not “establish the existence of an objective
injury for purposes of Eighth Amendment claim”); Rogers v. Laird, 2008 WL 619167, at *3 (N.D.N.Y. Feb. 8, 2008) (noting
that “[t]he temporary deprivation of restroom privileges for a three hour period does not constitute an extreme deprivation of
life's necessities”); Bourdon v. Roney, 2003 WL 21058177, at *1 1 (N.D.N.Y. Mar. 6, 2003) (three hour deprivation of bathroom
privileges did not constitute Eighth Amendment violation); Qawi v. Howard, 2000 WL 1010281, at *3–4 (D.Del. July 7, 2000)
(denial of use of bathroom for six hours during which inmate forced to urinate in drinking cup and bowl and defecate into a paper
bag did not constitute sufficiently serious deprivation because duration of condition was brief and inmate suffered no significant
health risk); Whitted v. Lazerson, 1998 WL 259929, at *2 (S.D.N.Y. May 21, 1998) (holding that an inmate's Eighth Amendment
rights were not violated when he was occasionally prevented from using the restroom and thus urinated or defecated on his
clothing); Odom, 1997 WL 576088, at *4 (finding that the absence of a working toilet in an inmate's cell for several hours “does
not rise to the level of cruel and unusual punishment”).
McGee argues that Defendants' case citations are distinguishable because he was deprived of bathroom access regularly and
as a matter of policy. He compares his situation to that in Shariff v. Coombe, 655 F.Supp.2d 274, 298–300 (S.D.N.Y.2009), a
case brought by wheelchair-bound inmates. The plaintiffs in Shariff testified that they had urinated and defecated on themselves
several times per week, and had at times suffered injuries trying to use handicap-inaccessible bathrooms. While the court did
note that cases involving one-time denials of bathroom access were distinguishable, its analysis focused on the injuries suffered:
“The sheer frequency with which these incidents occur—not to mention the physical injuries that at least some Plaintiffs have
suffered in attempting to use an inaccessible restroom—indicates that Plaintiffs have been denied ‘the minimal civilized measure
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of life's necessities' in violation of the Eighth Amendment.” Shariff, 655 F.Supp.2d at 298. McGee's injury—the fact that he
was forced to urinate into a cup—was far less serious, and thus distinguishable from the facts in Shariff.
*7 Furthermore, even assuming that McGee could show that having to wait two hours between bathroom visits was sufficiently
serious under the Eighth Amendment, the Complaint does not allege deliberate indifference to a health risk. See Farmer, 511
U.S. at 834. On the one alleged occasion that McGee was forced to urinate into a coffee mug, he awoke in the middle of the
night and an officer did not respond to his calls for approximately twenty minutes. (Doc. 7 at ¶¶ 81–92.) McGee now alleges that
he had an enlarged prostate, but does not suggest that his condition was, or should have been, known to the Correctional Officer
on duty. While the wait was undoubtedly uncomfortable, the officer's alleged action—effectively ignoring McGee's calls while
“chatting” on the internet—did not amount to the sort of deliberate indifference to an excessive risk of harm that runs afoul
of the Eighth Amendment. See Vacca v. Scott, 119 F. App'x 678, 679 (5th Cir.2005) (finding that, although plaintiff averred
that defendants acted with deliberate indifference in denying him access to a bathroom, at most he alleged that he suffered
generalized pain and discomfort, which is insufficient to state an Eighth Amendment violation).
B. Denial of Drinking Water (Count 1)
Count 1 of the Complaint also alleges that McGee was denied drinking water between 10 p.m. and 6 a.m. McGee does not allege
that he was denied access to drinking water outside of ordinary sleeping hours, and the Eighth Amendment does not require
access to drinking water at all times. Mortimer Excell v. Fischer, 2009 WL 3111711, at *5–*6 (N.D.N.Y. Sept. 24, 2009); Bolin v.
Rice, 2000 WL 342676, at *5 (N.D.Cal. Mar. 30, 2000) (“As long as an inmate's meals included a beverage, the temporary denial
of drinking water presents no constitutional issue.”) (citing Tesch v. County of Green Lake, 157 F.3d 465, 475–76 (7th Cir.1998)).
Accordingly, to the extent that McGee was denied drinking water during the night, there was no constitutional violation.
C. Inability to Wash Hands with Soap (Count 1)
McGee further alleges that after urinating in his cell he could not wash his hands immediately, and that only later was he allowed
rinse his hands without soap. 1 These claims fall far short of alleging an Eighth Amendment violation. See, e.g., Harris v.
Fleming, 839 F.2d 1232, 1234–36 (7th Cir.1988) (holding that prisoner did not state a claim when prison officials negligently
deprived him of soap, toothbrush, and toothpaste for ten days); Fernandez v. Armstrong, 2005 WL 733664, at *5 (D.Conn. Mar.
30, 2005) (denial of hygiene items, including soap, for sixteen days did not allege a violation of Eighth Amendment rights);
Fisher v. Dep't of Corr., 1995 WL 608379, at *5 (S.D.N.Y. Oct. 16, 1995).
Because none of the claims set forth in Count 1 of the Complaint rise to the level unconstitutional conduct, I recommend that
Count 1 be DISMISSED.
D. Inadequate Clothing (Count 3)
*8 Defendants also argue for dismissal of Count 3, in which McGee alleges that he was denied adequate clothing. McGee was
transferred from Kentucky to SSCF in Vermont in 2007, and claims that he was not provided any clean clothing during the two
and a half days he spent at SSCF. He was then transferred to CRCF, but was “unable to have any street clothing sent into him
because his family in Vermont, who had Plaintiff's clothing, was [out of state] in Connecticut caring for a sick relative.” (Doc. 7
at ¶ 202.) As a result, McGee did not receive clean clothing during the five and a half days he was held at CRCF. (Id. at ¶ 205.)
After CRCF, McGee was housed at NSCF. He claims that the temperatures outside “ranged from 0 to only the low teens,” and
that although he had no winter jacket, he needed to walk outside each day to reach “NSCF's cafeteria, medical, and education/
recreation buildings, which are separate from the living units.” (Id. at ¶ 209.) McGee's underclothes arrived from Kentucky one
month after his transfer, but he still lacked a warm outer layer. A few weeks later, he received a $50 money order from his family,
but was unable to buy a winter coat from fellow inmates. His family ultimately sent him a package of clothing approximately
three months after his transfer from Kentucky. (Id. at ¶ 229.) McGee claims that he complained to prison officials and filed
grievances about his clothing situation, but received no relief.
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McGee also claims that prison officials forced him to either cut out a string that held up his sweatpants, or remain naked. He
alleges that he chose to go naked rather than have his clothing “destroyed,” and that he remained naked for two days before
being placed in general population. (Id. at ¶¶ 244–48.)
McGee's allegations regarding a lack of clean clothes again fall short of stating plausible constitutional violations. Specifically,
his claims that he was denied clean clothing, first for two and a half days at SSCF, and then during a five and half day stay
at CRCF, do not state Eighth Amendment claims. See McCorkle v. Walker, 871 F.Supp. 555, 557 (N.D.N.Y.1995) (no Eighth
Amendment violation where plaintiff was not given a change of underwear for fifteen days); Chavis v. Fairman, 1995 WL
156599, at *5 (3d Cir. Apr. 6, 1995) (court found no violation where inmate was forced to wear same uniform for three weeks);
Roberts v. Dep't of Corr., 1996 WL 526779, at *4 (N.D.Ill. Sept. 12, 1996) (holding that where inmates were forced to wear the
same set of clothing for thirteen days, “such a short period of time without a change of clothing is nothing more than a temporary
inconvenience and hardly rises to the level of the unnecessary and wanton infliction of pain.”). Similarly, his allegation that
he had to wear the same clothes for a significant period of time while at NSCF does not rise to the level of a constitutional
violation. 2 (Doc. 7 at ¶¶ 206, 215, 229); see Chavis, 1995 WL 156599, at *5; Moss v. DeTella, 1997 WL 24745, at *2 (N.D.Ill.
Jan. 16, 1997) (holding that lack of clean clothes and bedding for 111 days did “not rise to the level of a constitutional violation”);
Coughlin v. Sheahan, 1995 WL 12255, at *3 (N.D.Ill. Jan. 12, 1995) (allegation that inmate was provided only one change of
clothing in a three-month period did not support Eighth Amendment claim).
*9 McGee's claims regarding exposure to cold weather, however, are sufficient to survive Defendants' motion to dismiss.
Exposure to extreme cold as a result of the denial of adequate winter clothing can provide a basis for finding that an Eighth
Amendment violation has occurred. See Corselli v. Coughlin, 842 F.2d 23, 27(2d Cir.1988); Wright v. McMann, 387 F.2d 519
(2d Cir.1967). Indeed, “[a]dequate clothing is one of the necessities of life which prison officials cannot deprive an inmate.”
Gordon v. Faber, 800 F.Supp. 797, 800 (N.D.Iowa), aff'd, 973 F.2d 686 (8th Cir.1992); see also Davidson v. Coughlin, 920
F.Supp. 305, 309 (N.D.N.Y.1996) (holding that defendants had failed to show at summary judgment “how the clothing issued
is sufficiently suitable for the harsh winter climate of upstate New York”); Balla v. Idaho St. Bd. of Corr., 595 F.Supp. 1558,
1575 (D.Idaho 1984) (providing prisoners with clothing that is “patently insufficient to protect them from cold winter months”
is a violation of the Constitution). Factors to be considered with regard to an alleged denial of adequate cold weather clothing
include the length of exposure and temperatures experienced. See, e.g. Gaston v. Coughlin, 249 F.3d 156, 164–65 (2d Cir.2001).
Here, McGee's allegation of enduring several weeks in the middle of a Vermont winter without a coat or other adequate clothing,
and of the failure of prison officials to help him remedy the situation, states a claim under the Eighth Amendment. Although short
periods of exposure may not have been unconstitutional, the record thus far does not establish the length or frequency of McGee's
exposures as he traveled from building to building at NSCF. See Koehl v. Bernstein, 2011 WL 2436817, at * 18 (S.D.N.Y. June
17, 2011) (no Eighth Amendment violation where inmate did not have appropriate clothing for outside recreation). Because
the Complaint alleges a significant period of time in which McGee had inadequate clothing during the winter, the Court should
decline to dismiss this claim under Rule 12(b)(6) for lack of plausibility.
Finally, Defendants argue that McGee chose not to wear his sweatpants rather than have the string removed. McGee contends that
his choice was between the destruction of his clothing and having to go naked. The Court has found no case law directly on point,
aside from the general principle that privacy interests of an inmate must be balanced with legitimate security interests of the
institution. See, e.g., Canedy v. Boardman, 16 F.3d 183, 185–87 (7th Cir.1994). Because Defendants have not completely briefed
whether the choice presented to McGee amounted to a constitutional violation, or whether there was a legitimate penological
reason for denying him the string to his sweatpants, the Court should not dismiss McGee's claim at this time.
1. Personal Involvement
a. Legal Standard
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Because I am not recommending dismissal of Count 3 in its entirety, I must consider Defendants' personal involvement
arguments. Defendants Kupec, Hofmann, Martinson and Pallito, all of whom are named because of their roles as supervisors,
contend that the Complaint does not allege facts that would render them liable under § 1983. 3 Before the Court undertakes a
personal involvement analysis, it must determine the appropriate legal standard, as the standard for supervisor liability under §
1983 has been a matter of debate since the Supreme Court's decision in Ashcroft v. Iqbal. See generally D'Olimpio v. Crisafi,
718 F.Supp.2d 340, 347 (S.D.N.Y.2010) (collecting cases).
*10 In Iqbal, the Supreme Court held that “[b]ecause vicarious liability is inapplicable to ... [§ ] 1983 suits, a plaintiff must
plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”
129 S.Ct. at 1948. The Supreme Court explicitly rejected the argument that “a supervisor's mere knowledge of his subordinate's
discriminatory purpose amounts to the supervisor's violating the Constitution.” Id. at 1949. Thus, “[a]bsent vicarious liability,
each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Id.
Prior to Iqbal, Second Circuit precedent provided for supervisor liability not only where the supervisor was directly involved,
but also where he or she had been made aware of misconduct and had failed to take corrective action. See Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir.1995). Liability could also attach where a supervisor had created policies or customs that allowed for, or
resulted in, unconstitutional practices. Id. Specifically, Colon held that supervisor liability “may be shown by evidence that: (1)
the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional
practices occurred or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates
by failing to act on information indicating that unconstitutional acts were occurring.” Id. (citing Wright v. Smith, 21 F.3d 496,
501 (2d Cir.1994)).
Post-Iqbal, lower courts in this Circuit have had to determine whether all of the Colon factors remain good law. In some
instances, consistent with the Iqbal holding, courts have held that a supervisory defendant cannot be held liable under § 1983
unless that defendant actively deprived the plaintiff of his or her constitutional rights. See, e.g., Newton v. City of New York,
640 F.Supp.2d 426, 448 (S.D.N.Y.2009) (“passive failure to train claims pursuant to § 1983 have not survived the Supreme
Court's recent decision in [Iqbal ]”). Recent decisions have generally been careful to note, however, that Iqbal involved equal
protection and discrimination claims, each of which require proof of discriminatory intent. See, e.g., Plair v. City of New York,
2011 WL 2150658, at *4 (S.D.N.Y. May 31, 2011) (citing Iqbal, 129 S.Ct. at 1948). Indeed, the Supreme Court held that
a supervisor's “mere knowledge of his subordinate's discriminatory purpose ” does not amount to a constitutional violation.
Id. at 1949 (emphasis supplied). The Supreme Court also allowed that “the factors necessary to establish a [constitutional]
violation will vary with the constitutional provision at issue.” Id. at 1948. Several courts in this Circuit have therefore retained
the traditional Colon factors for claims that do not involve discriminatory intent. See, e.g., Jackson v. Goord, 664 F.Supp.2d
307, 324 n. 7 (S.D.N.Y.2009) (holding that Colon standard is unaffected by Iqbal in deliberate indifference case, because Iqbal
“involved discriminatory intent.”).
*11 Defendants argue that the Colon factors did not survive Iqbal, and that instead the Court should look only at (1) whether
the supervisor directly participated in the violation, or (2) whether the supervisor created a custom or policy under which the
violation occurred. (Doc. 59 at 11–12.) For support, they cite Bellamy v. Mount Vernon Hosp., 2009 WL 1835939, at *4, *6
(S.D.N .Y. June 26, 2009), Joseph v. Fischer, 2009 WL 3321011, at * 14 (S.D.N.Y. Oct. 8, 2009), and Newton, 640 F.Supp.2d
at 448. However, “[s]ubsequent decisions have noted that Bellamy, Joseph, Newton, and similar rulings may overstate Iqbal's
impact on supervisory liability,” and have instead held that “[w]here the constitutional claim does not require a showing of
discriminatory intent, but instead relies on the unreasonable conduct or deliberate indifference standards of the Fourth and Eighth
Amendments, the personal involvement analysis set forth in Colon v. Coughlin may still apply.” Plair, 2011 WL 2150658, at
*5 (citing Sash v. United States, 674 F.Supp.2d 531, 544 (S.D.N.Y.2009); D'Olimpio, 718 F.Supp.2d 340, 347 (S.D.N.Y.2010);
Qasem v. Toro, 737 F.Supp.2d 147, 151 (S.D.N.Y .2010) (declining to adopt the “narrow interpretation of Iqbal ” advanced
by Bellamy, Joseph and Newton ).
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Given the language in Iqbal cautioning courts to examine “the constitutional provision at issue,” 129 S.Ct. 1948, this Court
should follow this latter line of cases, and should not discard the Colon factors where the claim does not require a showing of
discriminatory intent. As the Sash decision noted, “[i]t was with intent-based constitutional claims in mind, specifically racial
discrimination, that the Supreme Court rejected [in Iqbal ] the argument that a supervisor's mere knowledge of his subordinate's
discriminatory purpose amounts to the supervisor's violating the Constitution.” 674 F.Supp.2d at 544. Where a claim does not
require a showing of discriminatory intent, “the Colon analysis should still apply, insofar as it is ‘consistent with the particular
constitutional provision alleged to have been violated.’ “ Delgado v. Bezio, 2011 WL 1842294, at *9 (S.D.N.Y. May 9, 2011)
(quoting Qasem, 737 F.Supp.2d at 151–52).
b. Personal Involvement Alleged in Count 3
In Count 3, McGee does not assert the sort of intentional discrimination presented in Iqbal. Instead, he claims deliberate
indifference in violation of the Eighth Amendment. Courts in this Circuit have generally applied the five Colon factors to
such a claim. See Plair, 2011 WL 2150658, at *4 (“other judges in the Second Circuit have continued to cite all five of the
Colon categories as the bases for establishing supervisory liability in cases alleging violations of a plaintiff's Fourth and Eighth
Amendment rights”).
Defendants first argue that McGee has not alleged sufficient personal involvement on the part of Defendant David Martinson, the
Assistant Superintendent at NSCF. The allegation against Martinson is that, after Defendant Quijano's investigation concluded
that no further action was needed with regard to the clothing issue, Martinson concurred and denied McGee's Grievance # 2.
(Doc. 7 at ¶¶ 234–35.) There is no suggestion in the Complaint that Martinson did anything aside from merely affirming the
denial. It also appears from the Complaint that Martinson issued the affirmance after McGee had received additional clothing
from his family. (Id. at ¶¶ 229, 235).
*12 “[A]ffirming the administrative denial of a prison inmate's grievance by a high-level official is insufficient to establish
personal involvement under section 1983.” Manley v. Mazzuca, 2007 WL 162476, at *10 (S.D.N.Y. Jan. 19, 2007) (citing
Foreman v. Goord, 2004 WL 1886928, at *7 (S.D.N.Y. Aug. 23, 2004) (“The fact that [the prison superintendent] affirmed the
denial of plaintiff's grievances is insufficient to establish personal involvement.”)). As was noted in Thompson v. New York, 2001
WL 636432 (S.D.N.Y. Mar. 15, 2001), “[w]ere it otherwise, virtually every prison inmate who sues for constitutional torts by
prison guards could name the Superintendent as a defendant since the plaintiff must pursue his prison remedies and invariably
the plaintiff's grievance will have been passed upon by the Superintendent.” Id. at *7 (citations omitted). Furthermore, to the
extent that courts have found affirmance of a grievance to constitute personal involvement, many of those cases have involved
ongoing violations. See Thomas v. Calero, 2011 WL 1532058, at * 14, * 17 (S.D.N.Y. Mar. 17, 2011) (collecting cases, and
noting “uncertainty in the law” on this point). Here, the fact that McGee had received his clothing by the time Martinson issued a
response to the grievance means that there was no ongoing violation, at least with respect to McGee while housed at Martinson's
facility (NSCF). The Court should therefore find that the minimal allegations against Defendant Martinson are insufficient to
establish his personal involvement.
McGee's allegations against Defendant Kupec, the Facilities Executive at the DOC Central Office, and former DOC
Superintendent Hofmann, are that they each responded to his grievance appeals in writing, characterizing his claims as
“meritorious in part.” (Doc. 7 at ¶¶ 230, 237.) Defendant Kupec also allegedly wrote that he was “sorry” and that “inmates in
[McGee's] circumstances should have an alternative to remaining in the same clothing, day in, day out.” (Id. at ¶ 231.) Despite
their agreement with at least some of McGee's claims, Kupec and Hofmann allegedly failed to remedy what McGee claims
was a continuing, and problematic, practice in DOC and out-of-state prisons: providing clothing to inmates in some facilities
and sending their personal clothing to relatives or into storage, and then upon a prison transfer, requiring those same inmates
to provide their own clothing.
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Based upon these allegations, the Court should find that Kupec and Hofmann were both directly involved in the grievance
process, and were not merely “rubber-stamping” an administrative denial. See Woodward v. Mullah, 2009 WL 4730309, at *3
(W.D.N.Y. Dec. 7, 2009); Charles v. N.Y. State Dep't of Corr. Servs., 2009 WL 890548, at *6 (N.D.N.Y. Mar. 31, 2009) (drawing
a distinction between a supervisor who simply affirms the denial of a grievance and a supervisor who “receives and acts on
a prisoner's grievance or otherwise reviews and responds to a prisoner's complaint”) (citing Warren v. Goord, 476 F.Supp.2d
407, 413 (S.D.N.Y.2007)). Defendants argue that under the Bellamy and Joseph reasoning, mere knowledge of a violation is
insufficient. (Doc. 59 at 17.) For the reason discussed above regarding the appropriate legal standard, those limited readings of
Colon should not be applied here, and the motion to dismiss Defendants Kupec and Hofmann from Count 3 should be DENIED.
*13 Finally, Defendants' argument for the dismissal of current DOC Commissioner Pallito from Count 3 is misplaced. Personal
involvement is required for an award of damages under § 1983. Farrell, 449 F.3d at 484. In Count 3, however, McGee is only
seeking injunctive relief from Defendant Pallito. (Doc. 7 at ¶ 803); see Hall v. Marshall, 479 F.Supp.2d 304, 318 (E.D.N.Y.2007).
The motion to dismiss Defendant Pallito from Count 3 for lack of personal involvement should therefore be DENIED.
E. Conditions during Lockdown Drill (Count 4)
Defendants next move to dismiss McGee's fourth cause of action, in which he complains of his prison conditions during a
lockdown drill. McGee focuses on the lack of running water during the lockdown, but concedes that he was given eight ounce
drinks at breakfast, lunch and dinner, and a four ounce drink in the mid-afternoon. As discussed above, so long as inmates are
provided drinks at mealtimes, temporary deprivations of drinking water are not unconstitutional. See, e.g., Mortimer Excell,
2009 WL 3111711, at *5–*6; Bolin, 2000 WL 342676, at *5; Johnson v. Comm'r of Corr. Servs., 699 F.Supp. 1071, 1074
(S.D.N.Y.1988) (plaintiff confined for one week in a cell with an inoperable sink did not suffer a constitutional violation because
he was provided drinks with meals).
McGee's fourth claim also alleges that because the water was shut off, he could not flush his toilet and was therefore exposed
to unsanitary conditions. Courts facing similar, and in some instances more egregious, facts have denied relief under the Eighth
Amendment. See Smith v. Copeland, 87 F.3d 265, 269 & n. 3 (8th Cir.1996) (finding no violation when prisoner was confined
to cell with overflowed toilet for four days); Odom, 1997 WL 576088, at *4–5 (lack of a working toilet in prison cell for
approximately 10 hours “does not rise to the level of cruel and unusual punishment”). In Smith, the Eighth Circuit commented
that not every “overflowed toilet in a prison amounts to a constitutional violation.” 87 F.3d at 268. The court noted that “the
length of time a prisoner is subjected to harsh conditions is a critical factor in our analysis,” and that cell conditions that “may
be tolerable for a few days are intolerably cruel for weeks or months.” Id.
Here, the lockdown drill lasted twenty-four hours, and water was shut off for twenty hours. McGee claims that “noxious odors
from the unflushable toilets became so amassed and severe they escaped the confines of individual cells and permeated entire
buildings.” (Doc. 7 at 35.) His claims, however, do not approach the sort of extended deprivations that have been found to
violate the Eighth Amendment. See, e.g., Gaston, 249 F.3d at 166 (exposure to raw sewage “for days on end” stated viable
Eighth Amendment claim). McGee's allegations of unconstitutional conditions during the lockdown drill should therefore be
DISMISSED.
F. “Fishtank” Confinement (Count 7)
*14 Defendants next attack McGee's claims in Count 7, in which he alleges that he was confined in the “fishtank” with a group
of other prisoners for four days. As set forth above, his claims are that the cell was crowded, the bedding was thin and dirty,
access to personal hygiene items was limited to once per day, and ants crawled onto his bedding. Again, the relatively short
duration of McGee's exposure to such conditions undermines the viability of his claims. See Hutto v. Finney, 437 U.S. 678, 687
(1978) (“the length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards. A
filthy, overcrowded cell and a diet of ‘grue’ might be tolerable for a few days and intolerably cruel for weeks and months.”);
Wright, 387 F.2d at 526 (“civilized standards of humane decency ... do not permit” an inmate to be placed in a filthy, unheated
strip cell and deprived of clothes and basic hygiene items such as soap and toilet paper for a substantial period of time, i.e., 33
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days); Mahase v. City of New York, 2000 WL 263742, at *6 (E.D.N.Y. Jan. 5, 2000) (noting that “short-term confinement under
unsanitary or uncomfortable conditions, without more, typically does not amount to a constitutional violation”).
While the conditions in the “fishtank” may have been both crowded and arguably unsanitary, a four-day stay in such conditions
does not violate the Constitution. See, e.g., White v. Nix, 7 F .3d 120, 121 (8th Cir.1991) (eleven-day stay in unsanitary cell not
unconstitutional); Harris v. Fleming, 839 F.2d 1232, 1235–36 (7th Cir.1988) (five-day stay in filthy, roach-infested cell is not of
sufficient duration for a constitutional violation). Similarly, restricting access to hygiene items to once per day during this four-
day period did not amount to denial of McGee's constitutional rights. See Trammell v. Keane, 338 F.3d 155, 165 (2d Cir.2003)
(deprivation of “toiletries for approximately two weeks—while perhaps uncomfortable” did not violate Eighth Amendment);
Davidson v. Murray, 371 F.Supp.2d 361, 372 (W.D.N.Y.2005) (finding that an Eighth Amendment violation was not established,
based upon conditions “amount[ing] to no more than occasional or temporary deprivations of personal hygiene items, with no ...
indicat[ion] that plaintiff suffered any ‘specific deprivation of a single human need’ ..., or other accompanying harm”) (citation
omitted); Fernandez v. Armstrong, 2005 WL 733664, at *5–6 (D.Conn. Mar. 30, 2005) (up to 16–day deprivation of toothbrush,
toothpaste, soap, and shampoo did not violate the Constitution).
Finally, McGee's allegations of ants on his bedding are insufficient to state a constitutional violation, particularly when there
is no accompanying allegation of harm or injury. See, e.g, Summerville v. Faciuna, 2009 WL 2426021, at *9 (W.D.N.Y. Aug.
6, 2009) (no Eighth Amendment claim where plaintiff failed to “point to any evidence suggesting that [defendant] acted with
reckless indifference to Plaintiff's health and safety by allowing him to be exposed to bugs.”); Davidson, 371 F.Supp.2d at 370
(“Nothing so amorphous as overall conditions can rise to the level of cruel and unusual punishment when no specific deprivation
of a single human need exists.”); Govan v. Campbell, 289 F.Supp.2d 289, 296–97 (N.D.N.Y.2003) (holding that cockroach
problem in cells did not rise to level of a constitutional violation); Wilson v. Schomig, 863 F.Supp. 789, 794–95 (N.D.Ill.1994)
(allegations that the plaintiff's “cell contained dirt, dust and roaches, and that his ceiling leaked during rainstorms” are “not
sufficiently serious” to violate the Eighth Amendment). I therefore recommend that Count 7 be DISMISSED for failure to state
a plausible constitutional claim.
G. Inadequate Toothbrush (Count 9)
*15 Defendants further move for dismissal of Count 9, in which McGee alleges that he was issued a special toothbrush for one
week while housed in segregation. He describes the toothbrush as “a small, plastic, ‘thimble-like’ tool....” (Doc. 7 at ¶ 419.) He
claims that the tool was unsanitary because it forced him to put his fingers inside his mouth, that it would sometimes slip out of
his hands and cause him to gag, and that it “gouged the insides of Plaintiff's cheeks, causing lacerations, severe pain, bleeding
and lasting sores.” (Id. at ¶ 423.) In Johnson v. Goord, 12 F. App'x 22 (2d Cir.2000), the Second Circuit faced an apparently-
similar claim, in which New York inmates complained about “dangerous toothbrushes” that “caused bleeding from their mouths
and gums.” While the lower court dismissed for failure to exhaust administrative remedies, the Second Circuit concluded that
the inmates' claims were frivolous, and thus subject to dismissal under 42 U.S.C. § 1997e(c)(1).
McGee alleges that he was forced to use this “tool” for approximately one week. Courts in this Circuit have held that denying an
inmate access to a toothbrush for such a short period of time does not violate the Eighth Amendment. See Trammell, 338 F .3d at
165 (deprivation of toiletries, other than toilet paper, for two weeks does not violate Eighth Amendment); Fernandez, 2005 WL
733664, at *5 (denial of hygiene items including a toothbrush, toothpaste, soap, and shampoo for a period of sixteen days does
not allege a violation of Eighth Amendment rights); Chavis v. Kienert, 2005 WL 2452150, at *21 (N.D.N.Y. Sept. 30, 2005)
(denial of toiletries for a two month period did not rise to the level of deliberate indifference to the prisoner's health or safety)).
McGee does not claim that he was denied any toiletries or teeth-cleaning devices whatsoever. Instead, he claims that the special
toothbrush he was issued for a one-week period caused him discomfort and bleeding, and was arguably unsanitary. As the case
law above makes clear, a complete deprivation for four days would not have violated the Constitution. Consequently, provision
of a cleaning tool, though allegedly inadequate, also cannot violate the Constitution. I therefore recommend that Count 9 of
the Complaint be DISMISSED.
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III. Medical Care Claim (Count 11)
In Count 11, McGee claims that several of his medications were either allowed to expire without automatic renewal, or were
wrongfully discontinued, “causing Plaintiff to go without the medications for, at times, over a week.” (Doc. 7 at ¶ 489.) McGee's
alleged medical conditions included “environmental allergies; back & knee pain; intestinal pain & bleeding; migraine headaches;
and depression, bipolar, & anxiety disorders.” (Id. at ¶ 488.) He claims that, because of the regular discontinuation of his
medications, “he suffered pain and degeneration of his medical and mental health conditions, which interfered with his daily
activities.” (Id. at ¶ 491.)
*16 In order to state an Eighth Amendment claim regarding health care while in prison, an inmate must again satisfy both
objective and subjective components. Objectively, the alleged deprivation must be “sufficiently serious.” Wilson v. Seiter, 501
U.S. 294, 298 (1991). The Second Circuit has characterized the necessary level of suffering as that which would produce
death, degeneration or extreme pain. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996). Subjectively, the defendant must
have been actually aware of a substantial risk that the inmate would suffer serious harm as a result of his actions or inactions.
Salahuddin v. Goord, 467 F.3d 263, 279–80 (2d Cir.2006).
There can be little doubt that McGee's claims satisfy the subjective portion of the deliberate indifference standard. The Second
Circuit has made clear that “a deliberate indifference claim can lie where prison officials deliberately ignore the medical
recommendations of a prisoner's treating physicians.” Johnson v. Wright, 412 F.3d 398, 404 (2d Cir.2005) (citing Gill v.
Mooney, 824 F.2d 192, 196 (2d Cir.1987) (“Prison officials are more than merely negligent if they deliberately defy the express
instructions of a prisoner's doctors.”)). The allegation that medications were discontinued for financial purposes also suggests a
state of mind that could plausibly amount to deliberate indifference. See Chance v. Armstrong, 143 F.3d 698, 704 (2d Cir.1998)
(the “allegation of ulterior motives [i.e., monetary incentives], if proven true, would show that the defendants had a culpable
state of mind and that their choice of treatment was intentionally wrong and did not derive from sound medical judgment.”).
Consequently, Defendants move to dismiss on the basis of the objective prong, arguing that the alleged delays in McGee's
medications were not sufficiently serious to establish an Eighth Amendment claim. They also argue that, with regard to McGee's
allegations of harm, his claims of “pain and degeneration” lack sufficient detail. In Iqbal, the Supreme Court cautioned that a
complaint must include more than “a formulaic recitation of the elements.” 129 S.Ct. at 1951. By citing “degeneration” and
“pain,” McGee is merely echoing the requirements for the objective prong of the Eighth Amendment standard. See Hathaway,
99 F.3d at 553. The Complaint does not set forth any specific claims about which of his many ailments were impacted, or the
physical manifestations of his alleged “degeneration” and “pain.”
In his opposition memorandum, however, McGee provides additional details about his pain and suffering. With regard to his
mental health ailments, he claims that his missed medications “resulted in Plaintiff's depression, anxiety, and bipolar disorder
severely worsening: Plaintiff grew depressed and withdrawn, had anxiety attacks, and turned into a ‘shut in’ unable to leave
his cell due to the distress.” (Doc. 71 at 70.) Physical symptoms allegedly included severe migraine headaches and intestinal
bleeding. (Id. at 71.) Such claims may be sufficiently serious to satisfy the Eighth Amendment standard. See, e.g., Mahan v.
Plymouth Cty. House of Corr., 64 F.3d 14, 16–18 (1st Cir.1995) (severe depression and anxiety attacks); DeJesus v. Albright,
2011 WL 814838, at *9 (S.D.N.Y. Mar. 9, 2011) (migraine headaches).
*17 While a court generally may not look beyond the pleadings when considering a motion to dismiss under Rule 12(b)(6), “the
mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials, such
as his opposition memorandum.” Gadson v. Goord, 1997 WL 714878, at *1 n. 2 (S.D.N.Y. Nov. 17, 1997); see also Cusamano
v. Sobek, 604 F.Supp.2d 416, 461 (N.D.N.Y.2009) (holding that requirement of reading pro se submissions generously “makes
it appropriate to consider a plaintiff's papers in opposition to a defendant's motion to dismiss as effectively amending the
allegations of the plaintiff's complaint, to the extent that those factual assertions are consistent with the allegations of the
plaintiff's complaint.”) (citations omitted). Here, McGee's opposition memorandum includes additional allegations of serious
medical harm, sufficient to withstand the motion to dismiss.
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The Court must therefore again turn to the question of personal involvement. Although several Defendants are named in Count
11, the only personal involvement argument is presented on behalf of Commissioner Pallito. Specifically, Defendants argue
that Commissioner Pallito cannot be held liable because he merely affirmed denial of McGee's grievance. (Doc. 59 at 23.) The
Complaint, however, alleges the Pallito both received and investigated the grievance, (Doc. 7 at ¶ 505), and in his opposition
memorandum, McGee states that Pallito himself wrote that he had received the grievance, and that he concurred with his medical
staff. (Doc. 71 at 73) (“Specifically, Defendant Pallito stated, in part, ‘I have received your Appeal regarding your medication ...
Please be advised that I concur with Dr. Burroughs–Biron's findings, a copy of which I have attached.’ ”) McGee also claims that
the problems with his medications were ongoing, and the Commissioner failed to remedy the problem. Given these allegations,
I recommend that the motion to dismiss Defendant Pallito for lack of personal involvement be DENIED.
IV. Access to Courts Claim (Count 10)
Defendants next move to dismiss Count 10, in which McGee claims that he was denied access to his legal materials, and thus
denied his constitutional right to access the courts. Since the Defendants filed their motions, this claim has been dismissed by
the parties with prejudice. (Doc. 68.)
V. Retaliation Claims (Counts 2, 5, 6 and 12)
A. First Alleged Retaliatory Transfer (Count 2)
McGee also alleges several instances of retaliation. As discussed previously, Count 2 alleges that after he filed a lawsuit
in Vermont, McGee was wrongfully transferred from Kentucky to Vermont for a deposition. McGee claims that the prison
conditions in Vermont were less favorable than those to which he had become accustomed in Kentucky, and that the transfer
denied him access to his legal files for a period of time. The deposition was initially postponed after McGee's successful
challenge in state court, was rescheduled, was suspended upon McGee's own motion, and was never concluded. McGee alleges
in Count 2 that “he was transferred from Kentucky back to Vermont, not for the legitimate purpose of a deposition, but as pretext
for the true purpose of retaliation for filing a lawsuit and to deliberately disrupt his ability to litigate .” (Doc. 7 at ¶ 182.)
*18 “[P]rison authorities may not transfer an inmate in retaliation for the exercise of constitutionally protected rights....”
Davis v. Kelly, 160 F.3d 917, 920 (2d Cir.1998). In order to establish a claim of retaliation for the exercise of a constitutional
right, McGee must show (1) that he engaged in constitutionally protected conduct, and (2) that the conduct was a substantial
motivating factor for “adverse action” taken against him by Defendants. Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003). The
Second Circuit has defined “adverse action” in the prison context as “retaliatory conduct ‘that would deter a similarly situated
individual of ordinary firmness from exercising ... constitutional rights.’ “ Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004)
(citations omitted). The Second Circuit has also cautioned that claims of retaliation are “easily fabricated,” “pose a substantial
risk of unwarranted judicial intrusion into matters of general prison administration,” and that they must therefore be supported
by nonconclusory allegations. Bennett, 343 F.3d at 137 (citation omitted).
In support of his retaliation claim, McGee alleges that Assistant Attorney General Kuehl, who was both opposing counsel in
the state court litigation and the one who allegedly requested the prison transfer, stated during a telephone conversation that
he could “transfer Plaintiff wherever he wanted,” and that McGee did not “ ‘have any rights.’ “ (Doc. 7 at ¶ 140–41.) McGee
also claims that Kuehl scheduled the deposition so as to interfere with his ability to file a dispositive motion in the state court
case. In sum, he claims that the timing of his transfer, “as well as Defendant Kuehl's statement in relation to the deposition and
transfer,” demonstrate a causal connection between protected activity and the actions taken by Defendants. (Id. at ¶ 184.)
Accepting McGee's allegations as true, his claims nonetheless fail to state a plausible claim. Attorney Kuehl noticed McGee's
deposition in a case that was initiated by McGee himself. The case was brought in Vermont, and McGee should have reasonably
expected that he would need to appear here for depositions or other proceedings. His deposition was scheduled, and it necessarily
required a transfer from the facility in Kentucky. While a deposition by telephone or video might have been an option, Attorney
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Kuehl was not required to agree to such an alternative, and the fact that Kuehl required an in-person deposition does not lead
to an inference of retaliation.
The timing of the deposition does not support McGee's claim, as scheduling a deposition near the end of discovery, and thus
near the deadline for dispositive motions, is not unusual. Indeed, there is an “obvious alternative explanation” for the fact
and timing of McGee's transfer from Kentucky, aside from any claim of retaliation. Iqbal, 129 S.Ct. at 1951–52. 4 Finally,
any alleged statements by Attorney Kuehl about his ability to transfer an inmate, or the extent of an inmate's rights, while
arguably inappropriate, do not bolster McGee's claim that the transfer was retaliatory. I therefore recommend that Count 2 be
DISMISSED.
B. Second Alleged Retaliatory Transfer (Count 5)
*19 Count 5, which alleges a second retaliatory transfer, presents an arguably stronger claim. In Count 5, McGee alleges that
on February 12, 2009, a court clerk scheduled jury draws in two of his state court cases. The draws were to be held on April
15, 2009, unless the parties moved for summary judgment prior to February 28, 2009. Both parties subsequently moved for
summary judgment prior to the deadline, thereby “effectively cancel[ing] the Apr. 15, 2009 jury draws.” (Doc. 7 at ¶ 313.)
On April 5, 2009, McGee, who was being housed in Kentucky at the time, was informed that he was being returned to Vermont.
McGee suspected that the transfer was due to the jury draws, and showed Kentucky officials a copy of a court order canceling
the draws. Efforts to reach DOC staff in Vermont were unsuccessful, and McGee was placed on the transport bus. McGee now
claims that DOC staff deliberately declined to respond to calls from Kentucky prison officials prior to his transfer. He also
claims that the transfer denied him access to his legal materials, thus interfering with his ability to litigate, and that the prison
conditions upon his arrival in Vermont were unconstitutional.
McGee further claims that Attorney Kuehl “had effective notice that the jury draws had been canceled over a month earlier
when the parties had filed summary judgment motions, and that transferring Plaintiff back to Vermont was completely
unnecessary.” (Id. at ¶ 342.) He claims that Defendant Kevin Oddy, who worked in the DOC's out-of-state office, also received
notice of the canceled jury draws in a fax from Kentucky prison officials dated April 6, 2009—presumably the day of McGee's
transfer. Finally, McGee alleges that when he discussed the issue of his transfer with “a Department executive staff person,” he
was told that the DOC was “ ‘just yanking your chain.’ “ (Id. at ¶ 349.)
Defendants contend that a transfer from Kentucky to Vermont is not an adverse action, citing case law for the proposition that
transfers between facilities with the same level of security are not “sufficiently adverse.” (Doc. 59 at 30) (citation omitted). The
Complaint makes clear, however, that the conditions of McGee's confinement when he arrived in Vermont were more severe
than those he had experienced in Kentucky, and that Defendants were aware of those differences.
Defendants also argue that by characterizing the jury draws as “effectively canceled,” McGee is admitting that they were not
actually canceled. (Id. at 30–31.) The Complaint alleges, however, that McGee showed a prison official in Kentucky “a copy
of the superior court's order canceling the court hearing.” (Doc. 7 at ¶ 320.) Accepting McGee's allegations as true, the Court
must reject Defendants' argument on this point.
In sum, Count 5 essentially claims that Defendants ordered an unnecessary transfer. A causal link may be inferred from the
statement of an un-named DOC official that the Department was intentionally “yanking” McGee's “chain.” The Court should
therefore find that Count 5 states a plausible retaliation claim.
*20 Three Defendants—Salem, Kupec, and Pallito—assert that they were not personally involved in the events alleged in
Count 5. The Complaint alleges that Kupec and Pallito reviewed, investigated and denied McGee's grievance. In his opposition
memorandum, McGee asserts that Pallito gave him a detailed response in excess of 150 words. These allegations are sufficient
to survive a motion to dismiss under Rule 12(b)(6).
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As to Defendant Salem, the allegation is that as director of the DOC legal division, she was grossly negligent in her supervision
of Defendant Kuehl. (Doc. 7 at ¶¶ 354–55.) Gross negligence by a supervisor is the fourth Colon factor. 58 F.3d 873; see also
Reid v. Bezio, 2011 WL 1577761, at *7 (N.D.N.Y. Mar. 30, 2011) (assuming, without deciding, that Colon factors apply to
retaliation claim). However, McGee offers no facts to support his claim. Specifically, he fails to assert that Salem “had actual or
constructive notice of the unconstitutional practices and demonstrated gross negligence or deliberate indifference by failing to
act.” Merriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir.1989). Such allegations are necessary for liability to attach under
§ 1983. See, e.g., Smith v. Dep't of Corr., 2007 WL 678549, at *4 (D.Conn. Mar. 1, 2007). The motion to dismiss Count 5 with
respect to Defendant Salem should therefore be GRANTED.
C. Third Alleged Retaliatory Transfer (Count 6)
McGee's third retaliatory transfer claim, set forth in Count 6, alleges that he was transferred from CRCF to SSCF after filing
a series of grievances. When Defendant Richard Byrne, a living unit supervisor at CRCF, informed Defendant Greg Hale, the
superintendent at CRCF, that McGee's claims raised “valid issues,” Hale's alleged response “was to ask how soon Plaintiff could
be transferred to another facility.” (Id. at ¶ 361.) One day after Byrne's conversation with Hale, McGee was transferred to SSCF.
McGee claims that the conditions at SSCF were “grossly overcrowded,” and that as a result he spent nearly four days in the
“fish tank” and an additional eight days “in segregation under punitive conditions.” (Id. at ¶ 366.)
McGee's filing of grievances represented protected activity. See Scott v. Coughlin, 344 F.3d 282, 288 (2d Cir.2003) (citation
omitted). Further, the Second Circuit has held that transfers to other facilities or housing units can, under certain circumstances,
satisfy the adverse action requirement. See Davis, 160 F.3d at 920 (transfer from one state prison facility to another constituted
an adverse action). However, this is not such a case, as it is not apparent from the Complaint whether Defendant Hale was aware
that McGee would be placed in more severe conditions when he arrived at SSCF. Without such knowledge on the part of a
defendant, the Court cannot find it plausible that the defendant intended the prison transfer to result in “adverse” consequences.
See, e.g., Barnes v. Craft, 2008 WL 3884369, at *12 (N.D.N.Y. Aug. 18, 2008) (“it is appropriate for a court to focus on the
adverse action caused by the defendant or defendants in question (rather than whatever bad things happened to the plaintiff
following the taking of adverse action by the defendant or defendants)”) (emphasis and parenthetical in original). I therefore
recommend that Count 6 be DISMISSED.
D. Retaliatory Destruction of Legal Materials (Count 12)
*21 Defendants argue that Count 12 of the Complaint is barred by claim preclusion. McGee alleges in Count 12 that prison
officials at SSCF deliberately mishandled his legal materials in retaliation for his grievances and lawsuits. In November 2009,
McGee filed a “Complaint for Writ of Replevin in Detinet” in Windsor Superior Court, asking the state court to order the return
of his personal property, including legal materials. The case subsequently settled and was dismissed by the parties with prejudice.
Defendants now contend that McGee is merely applying a “new legal theory to apply to the same set of facts.” (Doc. 59 at 35.)
In a federal § 1983 suit, the same preclusive effect is given to a previous state court proceeding as would be given to that
proceeding in the courts of the state in which the judgment was rendered. See 28 U.S.C § 1738; Migra v. Warren City Sch.
Dist. Bd. of Educ., 465 U.S. 75, 82–83 (1984); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 476 (1982). The Court must
therefore decide what preclusive effect the Vermont courts would give to McGee's prior state court proceedings.
Under Vermont law, claim preclusion (also known as res judicata ) requires (1) a previous final judgment on the merits, (2) in a
case that was between the same parties or parties in privity, and (3) the claim has been or could have been fully litigated in the
prior proceeding. In re St. Mary's Church Cell Tower, 910 A.2d 925, 926 (Vt.2006). Under Vermont law, a stipulated settlement
and dismissal has full preclusive effect. See Johnston v. Wilkins, 830 A.2d 695, 699 (Vt.2003). There can also be little doubt
that the same parties or parties in privity were involved. See, e.g., Vega v. Lantz, 2006 WL 2788374, at *5 (D.Conn. Sept. 26,
2006) (finding privity among employees of Department of Correction) (citing Sunshine v. Anthracite Coal Co. v. Adkins, 310
U.S. 381, 402–03 (1940); Cullen v. Paine Webber Group, Inc., 689 F.Supp. 269, 278 (S.D.N.Y.1988)).
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However, there is a well-recognized exception to claim preclusion where the court in the first action had limited jurisdiction
with respect to the available remedies. See Nestor v. Pratt & Whitney, 466 F.3d 65, 73 (2d Cir.2006). As explained in § 26(1)
(c) of the Restatement (Second) of Judgments, this exception applies where
[t]he plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form
of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or
restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms
of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek
that remedy or form of relief....
Restatement (Second) of Judgments § 26(1)(c) (1982); see also Marrese v. American Academy of Orthopaedic Surgeons, 470
U.S. 373, 382 (1985) (“With respect to matters that were not decided in the state proceedings ... claim preclusion generally does
not apply where ‘the plaintiff was unable to ... seek a remedy because of the limitations on the subject matter jurisdiction of
the courts.’ ”) (quoting Restatement (Second) of Judgments § 26(1)(c) (1982)). Although not applied in this precise context,
the Vermont Supreme Court has adhered to the general principle set forth in § 26 of the Restatement. See State v. Carroll, 765
A.2d 500, 502 (Vt.2000) (citing Restatement (Second) of Judgments § 26).
*22 Here, McGee sought injunctive relief in a state court proceeding pursuant to Vt. R. Civ. P. 64 and 12 V.S.A. §§ 5331 et seq.
He reports that while some of his property was recovered, the legal materials were never found. (Doc. 71 at 105.) McGee is now
seeking damages for the unrecovered items. His memorandum cites state case law for the proposition that “Vermont replevin
statutes do not provide for recovery of value of items not replevied.” (Id.) (citing Bagley v. Cooper, 99 A. 230 (Vt.1916)).
Defendants have not countered McGee's argument, and the Court has found no authority to the contrary. Accordingly, it appears
that McGee could not have recovered damages in his replevin action, and that he is not barred by claim preclusion from seeking
such relief here. Defendants' motion to dismiss Count 12 on the basis of claim preclusion should therefore be DENIED.
Moving to the question of personal involvement, McGee's allegations of supervisory action with regard to the events alleged in
Count 12 are minimal. The Complaint asserts a single claim that “Defendants Carbonell, Kamel, Kupec, and Pallito investigated,
but did not formally respond to, Plaintiff's grievances pertaining to his ‘missing’ or destroyed legal materials.” (Doc. 7 at ¶ 570.)
No other facts support the claim of four separate investigations. Furthermore, many courts have held that a supervisor's failure
to respond is insufficient to establish personal involvement. See Mateo v. Fischer, 682 F.Supp.2d 423, 430 (S.D.N.Y.2010)
(collecting cases). I therefore recommend that the claims brought against Defendants Carbonell, Kamel, Kupec, and Pallito
be DISMISSED.
McGee also claims that Defendant Salem was personally involved because she failed to expedite certain directives that would
have improved the handling of inmate property. (Doc. 7 at ¶¶ 563–64.) Defendants argue that this claim, which essentially
asserts that a failure to act was the cause of McGee's harm, is insufficient. In any event, “personal involvement of defendants ...
is a prerequisite to an award of money damages under § 1983,” Farid, 593 F.3d at 249, and no monetary relief is sought from
Defendant Salem in Count 12. (Doc. 7 at ¶¶ 833–34.) The motion to dismiss Defendant Salem should therefore be GRANTED
as to any claims for damages.
VI. Privacy Claim (Count 8)
In Count 8, McGee claims that he and other inmates had to use a toilet that could be viewed by female Correctional Officers,
thus denying him “his limited right to bodily privacy” under the Fourth Amendment. (Doc. 7 at ¶¶ 820–21.) The Second Circuit
has recognized a limited interest in bodily privacy. (Doc. 59 at 35) (citing Covino v. Patrissi, 967 F.3d 73, 78 (2d Cir.1992)).
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The Circuit Court has also specifically acknowledged that “the involuntary viewing of private parts of the body by members of
the opposite sex” is a “privacy interest entitled to protection.” Forts v. Ward, 621 F.2d 1210, 1216–17 (2d Cir.1980).
*23 In the prison context, courts have paid particular attention to “the frequency or regularity of such ‘viewing.’ As a general
rule, courts have found a violation only in those cases in which guards ‘regularly watch inmates of the opposite sex who
are engaged in personal activities, such as undressing, using toilet facilities or showering.” Miles v. Bell, 621 F.Supp. 51, 67
(D.Conn.1985); see also Covino, 967 F.2d at 78 (right to bodily privacy applies “even in the prison context”); Cumbey, 684
F.2d at 714 (noting that “[o]ther courts have held that if guards regularly watch inmates of the opposite sex who are engaged
in personal activities, such as undressing, using toilet facilities, or showering, the inmates' constitutional rights to privacy are
being violated.”).
This may be such a case. McGee claims that the toilet in the “fishtank” could be viewed both directly and via surveillance camera
by female Correctional Officers. Although a more private inmate bathroom was allegedly available, one such Correctional
Officer, Defendant Sullivan, denied inmates' requests to use it and instead “sat at her desk doing nothing but laughing and
ogling at them.” (Doc. 7 at ¶ 411.) McGee alleges that there was no legitimate penological reason for this alleged conduct, and
Defendants have not offered any such reason.
Giving the Complaint the required liberal reading, McGee's claim that Sullivan denied “repeated” requests for use of a more
private bathroom, one that would not expose them to “female security and non-security staff and civilian passersby,” the Court
should find that McGee has alleged sufficient facts to support a plausible claim. (Id. at ¶¶ 409–10.) McGee is not alleging a one-
time or infrequent event. Rather, he is claiming that he and other inmates were denied privacy several times a day, over the course
of several days, without reasonable justification. Such “regular” conduct by DOC personnel states a plausible privacy claim.
See, e.g., Cumbey, 684 F.2d at 714. Defendants' motion to dismiss for failure to state a viable claim should therefore be DENIED.
With respect to personal involvement by supervisors, Defendants assert that the claims against Defendants Rutherford, McWard,
Kupec, Pallito and Carbonell are each lacking. As to Defendants Rutherford and McWard, McGee explains in his opposition
memorandum that these Defendants provided specific responses to his grievances, with Rutherford in particular providing an
explanation of the reasoning behind the decision. (Doc. 71 at 121–22.) The claims against Rutherford and McWard should thus
survive the motion to dismiss.
In contrast, the claims brought against Kupec and Pallito are that they never provided any sort of response. As discussed above,
that is insufficient to establish the personal involvement of a supervisor for purposes of § 1983. Finally, while McGee concedes
that the Complaint makes “no specific allegations concerning Defendant Carbonell,” he invites the Court to infer that from her
daily rounds in the unit, she must have known that fishtank inmates using the toilet could be viewed by members of the opposite
sex. (Id. at 124–25.) The Court should not allow such a speculative claim to proceed. See Iqbal, 550 U.S. at 555 (“Factual
allegations must be enough to raise a right to relief above the speculative level....”). I therefore recommend that Defendants
Kupec, Pallito and Carbonell be DISMISSED from Count 8.
VII. Due Process Claim (Count 13)
*24 Count 13 alleges that the DOC regularly deprived McGee of his personal property, including some of his legal materials.
The alleged deprivations usually occurred during McGee's transfers between prison cells and facilities. McGee alleges that
in nearly every instance, his personal property was taken without a corresponding property receipt, and on several occasions
was lost.
Defendants first argue that only intentional deprivations are actionable under the Due Process Clause, and that negligence does
not rise to the level of constitutional harm. Defendants also submit that “random and unauthorized” conduct by government
officials requires only post-deprivation remedies. (Doc. 59 at 38) (citing Hudson v. Palmer, 468 U.S. 517, 534 (1984)); see
DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir.2003). McGee's claim, however, is that the deprivations of his personal property
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were so pervasive and predictable as to amount to a custom or practice by DOC officials. Stated somewhat differently, McGee is
claiming that the deprivations were both authorized and intentional, and that a post-deprivation remedy was therefore inadequate.
The extent to which Defendants' conduct was either authorized or intentional has not yet been established. The pattern of
conduct set forth in the Complaint, however, is sufficient to allege a plausible due process claim. Moreover, the number of
items allegedly lost or confiscated—including a sweatshirt, shorts, an expensive pen, pajamas, socks, storage boxes, bowls and
a cribbage board—amounts to a property interest greater than those cited by Defendants as de minimis. (Doc. 59 at 39–40.)
Defendants also argue, albeit briefly, that McGee has released them from liability with respect to each of his personal property
claims. McGee signed a general release on June 6, 2010, approximately five months after filing the Complaint in this case,
releasing the DOC and its “officers, agents, employees ...” from liability with regard to his personal property claims. (Doc. 59–
5 at 1.) The general release covers claims “related to my personal property from the beginning of the world to the day of the
date of this release, expressly limited to any and all claims for damages, costs and/or for attorneys' fees in connection with,
arising out of, or related to any of the claims asserted or that could have been asserted” in the replevin action (McGee v. Southern
States Corr. Facility, No. 832–11–09–Wncv) and a separate action against former DOC Commissioner Steven Gold (McGee
v. Gold, No. 108–2–06–Wncv). Id.
While the general release may have waived each of the claims set forth in Count 13, the Court cannot take that document into
account at this time. See, e.g., Calcutti v. SBU, Inc., 273 F.Supp.2d 488, 498–99 (S.D.N.Y.2003). The general release is before
the Court as an exhibit to Defendants' motion to dismiss. As it post-dated the Complaint, it was not mentioned in McGee's
initial pleading.
*25 In deciding a 12(b)(6) motion, the Court may not consider evidence that is outside of the pleadings. Rather, the Court
is limited to reviewing the four corners of the Complaint, any documents attached to that pleading or incorporated in it by
reference, any documents that are “integral” to the plaintiff's allegations even if not explicitly incorporated by reference, and
facts of which the Court may take judicial notice. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007).
When additional materials are submitted to the Court for consideration with a 12(b)(6) motion, the Court must either exclude
the additional materials and decide the motion based solely upon the complaint, or convert the motion to one for summary
judgment under Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(b); Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000).
In this case, the Court should decline to convert Defendants' motion to a motion for summary judgment. Conversion to summary
judgment would entail additional delay, not only with regard to Count 13, but as to all of the claims discussed above. I therefore
recommend that rather than delaying resolution on all claims while the parties submit statements of fact regarding Count 13, the
Court instead decline to consider the general release at this time. The parties may re-submit the general release for the Court's
consideration, with additional briefing, when procedurally appropriate.
This brings the Court again to the question of personal involvement. Defendants argue for dismissal on this basis on behalf
of Martinson, Kupec, Oddy, Potanas, Edwards, Carbonell, Pallito and Salem. The allegation against Assistant Superintendent
Martinson is that McGee spoke with him on several occasions regarding NSCF staff taking property without issuing receipts,
but that Martinson did not cure the problem. This allegation appears to fit squarely with the second Colon factor, which requires
notice and a failure to offer a remedy. 58 F.3d at 873. The alleged violation was ongoing, and notice appears to have been provided
not merely through a standard grievance process or other written correspondence, but in the course of personal conversations
between McGee and Martinson. Cf. Anderson v. Duke, 2006 WL 2792735, at *5 (N.D.N.Y. Sept. 27, 2006) (explaining that
cases involving letters and grievances “are premised upon the inability to say with certainty that an ignored letter ... provides
the basis to conclude that the recipient knew or reasonably should have been aware of the violation”). The Court should thus
DENY the motion to dismiss Defendant Martinson.
As to Defendant Kupec, the allegation is that he was involved in McGee's state court litigation commenced in 2005. In the
course of that litigation, Kupec reportedly submitted an affidavit regarding the proper use of property inventory forms in the
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prison setting. Kupec also allegedly “reiterated the need for Department staff to issue” inventory forms during a meeting of
DOC facility superintendents in 2006. (Doc. 7 at ¶¶ 596–600).
*26 What McGee does not allege is that Kupec responded to any specific complaints or grievances. (Id. at ¶¶ 616, 731, 760 .)
Moreover, the allegations in the Complaint suggest that to the extent Kupec was personally involved, he made efforts to improve
the handling of prisoner property. The motion to dismiss Kupec for lack of personal involvement in constitutional violations
should therefore be GRANTED.
McGee's claim against Defendant Oddy, housing unit manager at the DOC's Out–of–State Office, is that Oddy failed to ensure
the development and use of accurate property lists for out-of-state transfers. (Id. at ¶ 622.) McGee also alleges that Oddy was
“repeatedly sent copies of the [Kentucky facility's] allowable property list.” (Id. at ¶ 649.) Although McGee claims generally
that the Property Officer in Kentucky “complained about the condition of property arriving from Vermont,” it is not clear from
the Complaint whether such notice went to Oddy directly. Nor is it apparent that Oddy reviewed such complaints. This sort of
vague allegation of notice is insufficient to sustain a plausible claim of personal involvement, and the claim against Defendant
Oddy should be DISMISSED.
Count 13 does not assert any specific allegations of supervisory involvement by Defendant Mark Potanas, chief of security at
SSCF. (Id. at 38.) The motion to dismiss Potanas from Count 13 should therefore be GRANTED.
As to Defendant James Edwards, a Correctional Officer and property officer at SSCF, Defendants argue that McGee “offers
only the conclusory allegations that Edwards knew about, participated in, or failed to correct certain policies.” (Doc. 59 at 41.)
McGee's allegations, however, are more than conclusory, providing specific details about Edwards' direct involvement in the
handling of prisoner property. The Complaint alleges that Edwards called McGee to inventory his property, issued him property
receipts, and told him which property needed to be sent to storage. (Doc. 7 at ¶¶ 690–92, 697–98, 700–01.) Edwards also made
reference to “higher ups” having decided which property could be stored. Consequently, Defendants' arguments with respect
to Edwards' liability as a supervisor, and that he lacked sufficient involvement in alleged property deprivations, are misplaced.
The motion to dismiss Edwards from Count 13 should therefore be DENIED.
The claims in Count 13 being brought against Defendant Anita Carbonell, SSCF's Superintendent, are that McGee wrote her
more than once regarding the treatment of his personal property. Carbonell allegedly responded in writing, sometimes granting
McGee's requests, and at other times requiring that his property be sent to storage. (Id. at ¶¶ 702–06.) This level of involvement
is sufficient to state a plausible claim of supervisor liability under Colon.
Commissioner Pallito is also named in Count 13. In 2009, Pallito allegedly responded to McGee's grievance regarding property
receipts, stating that an investigation had revealed that “ ‘inmates who arrive awaiting out of state transfer are routinely not
provided with property receipts while at SSCF.’ “ (Id. at ¶ 654.) Pallito was therefore aware of the alleged problem, and
personally responded in a way that may subject him to liability if the underlying policy was unconstitutional. See, e.g., Charles,
2009 WL 890548, at *6.
*27 Finally, Defendants move to dismiss the claims in Count 13 being brought against Defendant Salem. As in Count 12, the
claim is that Salem failed to implement corrective policies. Unlike Count 12, McGee is seeking damages against Salem for her
alleged actions. Notably absent in Count 13 are any allegations that Defendant Salem had notice of the alleged violations. (Doc.
7 at ¶¶ 761–63.) The claims against Defendant Salem should therefore be DISMISSED.
VIII. Qualified Immunity
Defendants further argue that, with respect to McGee's constitutional claims, they are entitled to qualified immunity. This
argument is premature.
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Government officials performing discretionary functions are entitled to qualified immunity “from federal constitutional claims ...
as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson
v. Creighton, 483 U.S. 635, 638 (1987). “Although a defendant may assert the defense of qualified immunity in a motion to
dismiss, the Second Circuit has held that it is very difficult for such a defense to succeed at the pleading stage.” Charles v.
New York State DOCS, 2009 WL 890548, at *10 (N.D.N.Y. Mar. 31, 2009) (citing McKenna v. Wright, 386 F.3d 432, 436–37
(2d Cir.2004)). “The defense must be based on facts appearing on the face of the complaint.” Id. at * 10 (citing Benzman v.
Whitman, 523 F.3d 119, 125 (2d Cir.2008); see also Bernstein v. City of New York, 2007 WL 1573910, at *9 (S.D.N.Y. May
24, 2007) (“[b]ecause the qualified immunity defense necessarily involves a fact-specific inquiry, ‘[i]t is generally premature to
address the defense of qualified immunity in a motion to dismiss pursuant to [Rule] 12(b)(6)’ ”) (quoting Walker v. Mendoza,
No. 00 Civ. 93, 2000 WL 915070, at *7 (E.D.N.Y. June 27, 2000)).
In this case, Defendants argue qualified immunity as a general matter, relying primarily on their previous arguments for
dismissal. With little further analysis, the Court should not conclude that Defendants are entitled to qualified immunity based
solely on the allegations set forth in the Complaint. “Depending on what evidence is adduced through discovery, dismissal
of plaintiff's claims against [the Defendants] may be warranted on a properly supported motion for summary judgment, but
at this point, dismissal on this basis as to [the Defendants] is premature.” See Rivera v.. Fischer, 655 F.Supp.2d 235, 239–40
(W.D.N.Y.2009). I therefore recommend that the Court decline to dismiss any claims on the basis of qualified immunity at
this time.
IX. Sovereign Immunity
Defendants also contend that DOC Commissioner Pallito is entitled to sovereign immunity with respect the claims brought
against him in Counts 5 through 13. The Eleventh Amendment prohibits suits for damages brought in federal court against
unconsenting states or state officials sued in their official capacities. See Edelman v. Jordan, 415 U.S. 651, 663 (1974). As the
Supreme Court has explained, “an official-capacity suit against a state officer ‘is not a suit against the official but rather is a
suit against the official's office. As such it is no different from a suit against the State itself.” Hafer v. Melo, 502 U.S. 21, 26
(1991) (quoting Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)).
*28 A state may waive its Eleventh Amendment immunity so long as the waiver is unequivocally expressed. See Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). Additionally, Congress may abrogate the Eleventh Amendment
pursuant to Section 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Relevant to this case,
Congress has not abrogated Vermont's sovereign immunity from a § 1983 suit in federal court. See Will, 491 U.S. at 67. Moreover,
the State of Vermont has expressly preserved its sovereign immunity under the Eleventh Amendment. See, e.g., 12 V.S.A. §
5601(g). McGee's claims for damages against Commissioner Pallito in his official capacities are therefore barred by the Eleventh
Amendment, and should be DISMISSED.
X. State Law Claims
In addition to federal constitutional claims, each Count of the Complaint sets forth a state statutory or constitutional claim.
Defendants argue for dismissal of these state law claims on the ground that the cited provisions “have not been recognized as
supporting private causes of action, are plainly inapplicable to the claims in his Complaint, or both.” (Doc. 59 at 41.) McGee's
opposition memorandum does not respond to this portion of the motion to dismiss. The Court must nonetheless review the
Defendants' arguments to determine if dismissal of the state law claims is warranted. See McCall v. Pataki, 232 F.3d 321, 323
(2d Cir.2000).
In the first twelve Counts, McGee cites various Articles within Chapter I of the Vermont Constitution. These citations include
references to Chapter I, Article 4, which the Vermont Supreme Court has determined “does not ‘create substantive rights.’ “
Mellin v. Flood Brook Union Sch. Dist., 790 A.2d 408, 422 (Vt.2001) (quoting Shields v. Gerhart, 658 A.2d 924, 927 (Vt.1995)).
With respect to McGee's other citations within Chapter 1, specifically Articles 11, 18 and 20, there is no Vermont case law
supporting a private right of action under those provisions. See generally Shields, 658 A.2d at 930–34. The same is true of
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McGee's statutory citations to 28 V.S.A. §§ 601, 801 and 853. Cf. Borden v. Hofmann, 974 A.2d 1249, 1252–56 (Vt.2009)
(analyzing alleged § 851 violation under federal substantive due process standards).
Defendants further argue that McGee's claim under Chapter I, Article 10 is misplaced. That constitutional provision bars the
State from depriving a person of his liberty without due process of law, and pertains to “prosecutions for criminal offenses....”
See Vt. Const. Ch. I, Art. 10; see Parker v. Gorczyk, 744 A.2d 410, 416 (Vt.1999). As this case does not involve a criminal
prosecution, Article 10 has no application here. Similarly, Article 2 of Chapter I pertains to governmental takings, and thus
requires compensation for “property taken for the use of the public.” Vt. Const. Ch. I, Art. 2. Article 2 does not apply to the
loss or confiscation of a prisoner's personal property, particularly when there is no allegation the property was taken for “use
of the public.” See, e.g., Allen v. Wood, 970 F.Supp. 824, 831 (E.D.Wash.1997) (no takings claim where inmate failed to show
“that property he was authorized to receive was taken for public use”).
*29 McGee's final state law citation is to 28 V.S.A. § 708. That statute pertains to an inmate's discharge from confinement, with
subsection (b) requiring the return of an inmate's personal possessions. 28 V.S.A. § 708(c). McGee is currently incarcerated,
and was incarcerated during all of the events alleged in the Complaint. Section 708 of Title 28 thus does not apply to this case.
For each of these reasons, I recommend that McGee's state law claims be DISMISSED.
XI. McGee's Motion to Amend Complaint
To the extent that the Court is dismissing any claims, McGee has moved for leave to amend his Complaint to cure any
deficiencies. I find that this motion is premature, and that it does not comply with the Local Rules. Local Rule 15 requires
a redlined version of a proposed amendment “clearly designating additions and deletions.” L.R. 15(a). While the Court
acknowledges that red-lining may be difficult for a prison inmate to execute, at the very least the Court must know what
amendments are planned before granting leave to amend. This is particularly true with a Complaint of the size presented in this
case. The motion to amend (Doc. 82) is therefore DENIED without prejudice to re-filing.
Conclusion
For the reasons set forth above, I recommend that Defendants' motion to dismiss (Doc. 58) be GRANTED in part and DENIED
in part. Specifically, I recommend that Counts 1, 2, 4, 6, 7, and 9 be DISMISSED in their entirety. I recommend that Count 3
be DISMISSED except with regard to McGee's claims of inadequate winter clothing, and the claims related to his sweatpants.
Also, Defendant Martinson should be DISMISSED from Count 3 for lack of personal involvement.
In Count 5, Defendant Salem should be DISMISSED insofar as McGee is seeking damages. In Count 12, Defendants Carbonell,
Kamel, Kupec, Pallito and Salem should each be DISMISSED, again to the extent that McGee is seeking damages. In Count
8, Defendants Kupec, Pallito and Carbonell should be DISMISSED from McGee's claims for damages. And in Count 13,
Defendants Kupec, Oddy, Potanas and Salem should be dismissed from any claims for damages. All state law claims should be
DISMISSED. Defendants' motion to dismiss should otherwise be DENIED.
The motion to dismiss submitted by Defendant Prison Health Services (Doc. 62), which pertains only to Count 11 and adopts
the State Defendants' arguments, should be DENIED.
McGee's motion for leave to amend (Doc. 82) is DENIED without prejudice to re-filing, and his motion to order Defendants to
send him copies of all documents submitted to the Court (Doc. 79) is also DENIED. The Court does, however, expect Defendants
to comply with their service obligations under the Federal Rules of Civil Procedure.
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All Citations
Not Reported in F.Supp.2d, 2011 WL 6291954
Footnotes
1 McGee does not allege that he was denied soap entirely, but instead that he was not allowed to take soap with him to
the bathroom. (Doc. 7 at ¶ 96.)
2 McGee concedes that “laundry services were available.” (Doc. 71 at 32.) He also contends in his opposition
memorandum that he was “forced to wear the same set of indoor clothing for nearly four months.” (Id. at 31.) The
Complaint, however, alleges that he was transferred from Kentucky to Vermont on January 9, 2007, that “several changes
of underclothes” arrived from Kentucky on February 9, 2007, and that he “finally received a package of clothing from
his family” on April 12, 2007. (Doc. 7 at ¶¶ 196, 215, 229.) Therefore, at most, McGee did not have a change of outer
layers for approximately three months.
3 Other Defendants named in Count 3, for whom no such argument is made, include Defendants Fitzpatrick, Brochu and
Quijano.
4 Furthermore, if McGee's transfer improperly interfered with his ability to litigate, and he suffered prejudice as a result,
he could potentially bring an access to courts claim. See Lewis v. Casey, 518 U.S. 343, 351 (1996); Benjamin v. Fraser,
264 F.3d 175, 184 (2d Cir.2001).
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Milano v. Astrue, Not Reported in F.Supp.2d (2007)
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2007 WL 2668511
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Anthony J. MILANO, Plaintiff,
v.
Michael J. ASTRUE, Commissioner, Social Security Administration, Defendant.
No. 05 Civ. 6527(KMW)(DF).
|
Sept. 7, 2007.
Attorneys and Law Firms
Mr. Anthony J. Milano, Emerson, NJ, pro se.
MEMORANDUM AND ORDER
DEBRA FREEMAN, United States Magistrate Judge.
INTRODUCTION
*1 In an Order dated July 11, 2007, the Court denied plaintiff's motion for leave to file a Second Amended Complaint. Plaintiff
Anthony Milano (“Plaintiff”) now moves for reconsideration of the Court's decision. Because one of the legal memoranda
submitted by Plaintiff never came to the Court's attention, and the Court thus overlooked certain arguments presented by
Plaintiff, Plaintiff's motion for reconsideration is granted. Upon reconsideration, however, the Court adheres to its original
decision, denying plaintiff leave to file a Second Amended Complaint.
BACKGROUND
As discussed in this Court's July 11, 2007 Order, familiarity with which is assumed, Plaintiff, an employee of the Social Security
Administration (“SSA”), commenced this action against defendant Michael J. Astrue (“Defendant”), Commissioner of the SSA,
alleging age discrimination and retaliation claims under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§§ 621-34. (See Order, dated July 11, 2007 (“7/11/07 Order”) (Dkt.31), at 1.) After filing an Amended Complaint, 1 Plaintiff
sought leave from the Court to file a SecondAmended Complaint, adding supervisors Mary Carroll (“Carroll”) and Julio Infiesta
(“Infiesta”) as defendants. (Id. at 2.) The Court denied Plaintiff's request to add Carroll and Infiesta on the ground that the
ADEA does not permit a plaintiff to maintain discrimination claims against individual supervisors. (Id. at 4-9.)
On July 20, 2007, the Court held a status conference with the parties, in which Plaintiff questioned whether the Court had
seen all of his submissions on the motion to amend, prior to issuing its decision. Upon discovering that the Court's file was
incomplete, and that one of Plaintiff's submitted memoranda was in fact missing, the Court offered Plaintiff the opportunity to
move for reconsideration of its decision on the ground that, as a result of its incomplete file, the Court may have inadvertently
overlooked certain of Plaintiff's arguments.
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Plaintiff proceeded to move for reconsideration of the Court's July 11 Order, contending that reconsideration would be
appropriate because the Court overlooked both the “constitutional issue[s]” raised by Plaintiff in his motion to amend, and
the cases cited by Plaintiff in support of those claims. (“Request for Review of Magistrate Judge Debra Freeman's Denial For
Leave to File a Second Amended Complaint,” dated July 20, 2007 (“Pl. Motion for Reconsideration”).) 2 On August 1, 2007,
Defendant submitted an opposition to Plaintiff's motion for reconsideration, asserting that reconsideration should be denied
because Plaintiff did not properly raise his constitutional claims, and to the extent that he did raise such claims, the claims would,
in any event, fail. (Letter to Court from Kristin L. Vassallo, Assistant United States Attorney, dated Aug. 1, 2007 (“Def.Opp.”),
at 1-2.) On August 14, 2007, Plaintiff submitted a reply to Defendant's opposition papers. (Letter to Court from Plaintiff, dated
Aug. 14, 2007 (“Pl.Reply”) .)
DISCUSSION
I. PLAINTIFF'S MOTION FOR RECONSIDERATION
A. Applicable Legal Standard
*2 Motions for reconsideration are governed by Local Civil Rule 6.3 and are entrusted to the sound discretion of the court. See
Standard Inv. Chartered, Inc. v. Nat'l Ass'n of Sec. Dealers, Inc., No. 07 Civ.2014(SWK), 2007 WL 2049730, at *1 (S.D.N.Y.
July 13, 2007) (noting that although plaintiff did not indicate “the precise basis” for its motion, Local Civil Rule 6.3 governed
motions for reconsideration); Hunt v. Biochem, Inc., No. 06 Civ. 0170(SAS), 2007 WL 1346652, at *1 (S.D.N.Y. May 7, 2007)
(citing Patterson v. United States, No. 04 Civ. 3170, 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006)). “The standard for
granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked ....“ Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995).
A motion for reconsideration “should not be granted where the moving party seeks solely to relitigate an issue already decided.”
Id. at 257. Nor should such a motion be granted on the basis of new arguments and case law not previously presented to the
Court by the moving party. See Hunt, 2007 WL 1346652, at *1 (citing Caribbean Trading & Fid. Corp. v. Nigerian Nat'l
Petroleum Corp., 948 F.2d 111, 115 (2d Cir.1991)). Rather, “to be entitled to reargument and reconsideration, the movant
must demonstrate that the [c]ourt overlooked controlling decisions or factual matters that were put before it on the underlying
motion.” Multi-Juice, S.A. v.. Snapple Beverage Corp., No. 02 Civ. 4635(RPP), 2006 WL 2517082, at *1 (S.D.N.Y. Aug. 31,
2006) (internal quotation marks and citation omitted). In addition, reconsideration is not appropriate “unless the decisions or
data relied upon might reasonably be expected to alter the conclusion reached by the court.” Metro. Opera Ass'n, Inc. v. Local
100, Hotel Employees & Rest. Employees Int'l Union, No. 00 Civ. 3613(LAP), 2004 WL 1943099, at *2 (S.D.N.Y. Aug. 27,
2004) (citing Shrader, 70 F.3d at 257).
Where, as here, a plaintiff is proceeding pro se, the Court must construe his allegations liberally, and must interpret them “to raise
the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (internal quotation marks
and citation omitted); see also Augienello v. F.D.I.C., No. 02 Civ. 4317(RWS), 2004 WL 965918, at *1 (S.D.N.Y. May 5, 2004)
(in addressing motion for reconsideration, the court noted that plaintiffs were “proceeding pro se and that their submissions
should be held to less stringent standards than formal pleadings drafted by lawyers”) (internal quotation marks and citations
omitted); Dipasquale v. Miln, 303 F.Supp.2d 430, 431 (S.D.N.Y.2004) (“As with the complaint, the Court affords the present
grounds for reconsideration the close and sympathetic reading to which it is entitled.”). Additionally, where a pro se plaintiff has
submitted other papers to the Court, such as legal memoranda, the Court may consider statements in such papers to supplement
or clarify the plaintiff's pleaded allegations. See, e.g., Johnson v.. Wright, 234 F.Supp.2d 352, 356 (S.D.N.Y.2002) (considering
a pro se plaintiff's factual allegations in briefs as supplementing his complaint); Mallard v. Menifee, No. 99 Civ. 0923(SAS),
2000 WL 557262, at *2 (S.D.N.Y. May 8, 2000) (construing pro se plaintiff's IFP motion as part of his original complaint);
Burgess v. Goord, No. 98 Civ.2077(SAS), 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999) (in construing a plaintiff's claims
in the context of a motion to dismiss, “the mandate to read the papers of pro se litigants generously makes it appropriate to
consider plaintiff's additional materials, such as his opposition memorandum”) (internal quotation marks and citations omitted).
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B. Reconsideration Is Appropriate Here, as the Court Did Not Previously Receive or Consider All of Plaintiff's Duly
Filed Papers.
*3 Plaintiff argues that reconsideration is appropriate because the Court overlooked the constitutional issues he raised in his
underlying motion papers, as well as the cases he cited in support of that argument. In reviewing the “Memorandum of Law”
Plaintiff initially filed in support of his motion to amend, the Court now realizes that Plaintiff did argue, albeit briefly, that
Carroll and Infiesta “violated [his] constitutional rights to due process,” in addition to his “statutory rights under Title VII
and the ADEA.” (Plaintiff's “Memorandum of Law in Support of Notice of Motion Filed December 26, 2006,” dated Jan. 5,
2007 (“Pl.Mem.”) (Dkt.22.), at 2.) Certainly, in his “Second Memorandum of Law,” which was not previously before the Court
(although it was timely submitted to the Court's Pro Se office for filing), Plaintiff specifically argued that these individuals
violated his Fifth Amendment right to due process “by removing [him] from [his] position as Team Leader.” (Plaintiff's “Second
Memorandum of Law in Response to Defendant's Brief Dated January 19, 2007,” dated Jan. 31, 2007 (“Pl.2d Mem.”) (Dkt.26),
at 1, 2.) Plaintiff also cited case law in support of this contention. (Id.)
As noted above, Plaintiff's constitutional claims were not addressed by the Court in its July 11 Order. (See generally 7/11/07
Order.) Rather the Court only considered whether Plaintiff could add ADEA claims against Carroll or Infiesta. In moving for
leave to file a Second Amended Complaint, it originally appeared to the Court that Plaintiff was seeking only to add parties,
and not to add new claims. Indeed, Plaintiff did not raise any new claims, constitutional or otherwise, in his notice of motion
seeking leave to amend or in the “Statement” attached to that notice. (See Plaintiff's Notice of Motion For Leave to Amend,
dated Dec. 26, 2006 (“Pl. Notice of Motion”) (Dkt.20) (noting that he was seeking “to add two management officials to [his]
complaint”); id., attached Statement (requesting “the agreement of the court to add an additional two management parties to the
complaint,” and arguing “that their removal action was a direct consequence of my filing of prior age discrimination complaints
and is a continuation of the reprisal actions taken against me”).) It now appears, however, that Plaintiff was indeed seeking
to add constitutional claims, as is evident from his full submissions, taken together. (See discussion supra at 4-5.) Plaintiff's
motion for reconsideration is therefore granted, so that the Court may address his constitutional allegations. 3
II. PLAINTIFF'S PROPOSED CONSTITUTIONAL CLAIMS
A. Standard for Amendment Under Rule 15(a)
As set forth in the Court's prior Order, Federal Rule of Civil Procedure 15(a) provides that leave to amend a pleading “shall be
freely given when justice so requires.” Fed.R.Civ.P. 15(a). A motion to amend a pleading under Rule 15(a) should be denied,
however, “if there is an ‘apparent or declared reason-such as ... futility of amendment.’ “ Dluhos v. Floating & Abandoned
Vessel, Known as “New York,” 162 F.3d 63, 69 (2d Cir.1998) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
*4 An amendment is futile when the proposed new claim would not withstand a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001); see also Twisted Records,
Inc. v. Rauhofer, No. 03 Civ. 2644(DF), 2005 WL 517328, at *7 (S.D.N.Y. Mar. 3, 2005) (noting that the court may deny leave to
amend where the claim to be added would fail to state a claim upon which relief may be granted). Thus, if the proposed amended
complaint would be subject to “immediate dismissal” for failure to state a claim or on some other ground, the Court will not
permit the amendment. Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45, 55 (2d Cir.1999). If, however, the party
seeking to amend “has at least colorable grounds for relief, justice ... require[s]” that its motion be granted. Ryder Energy Distrib.
Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 783 (2d Cir.1984) (internal quotation marks and citation omitted).
Moreover, in reviewing the proposed pleading under Rule 12(b)(6) standards, the Court “must accept all factual allegations in
the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff.” Jaghory v. N.Y.
State Dep't of Educ ., 131 F.3d 326, 329 (2d Cir.1997).
B. The Proposed Amendment, To Add Constitutional Claims, Would Be Futile.
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As an initial matter, Defendant contends that Plaintiff should not be permitted to assert constitutional claims for discrimination
“because Title VII and the ADEA provide the exclusive remedy for a federal employee alleging employment discrimination
based on age and retaliation for protected activities.” (Def. Opp. at 2.) While this is a correct statement of the law, see Mathis
v. Corp. for Nat'l and Cmty. Serv., 327 F.Supp.2d 154, 155 (D.Conn.2004) (citations omitted), Defendant does not address the
separate question of whether Plaintiff may allege independent constitutional claims that are not grounded in discrimination.
Courts in this circuit have held that “non-Title VII claims [are not] foreclosed if they [are] based on action other than the
discrimination outlawed by Title VII.” Rottman v. U.S. Coast Guard Academy, 630 F.Supp. 1123, 1125 (D.Conn.1986); see also
Lewis v. Snow, No. 01 Civ. 7785(CBM), 2003 WL 22077457, at *10 (S.D.N.Y. Sept. 8, 2003) (“While Section 717 [of Title VII]
is the exclusive judicial remedy for discrimination against federal employees, ‘Title VII does not preclude separate remedies
for unconstitutional action other than discrimination based on race, sex, religion or national origin.’ ”) (quoting Rottman, 630
F.Supp. at 1125). Similarly, Plaintiff should not be foreclosed by the ADEA from asserting independent constitutional claims
against his supervisors based on allegations other than age discrimination.
Here, Plaintiff's proposed constitutional claims do not appear to be based on allegations that he suffered from discriminatory
conduct. Rather, Plaintiff apparently seeks to add Fifth Amendment claims against Carroll and Infiesta, in both their “official”
and “individual” capacities (Pl. Notice of Motion, attached Statement), on the ground that they violated his due process rights
by removing him from his “permanent civil service position without either an oral or written advance notice” (Pl. Reply at 2; see
also Pl. Mem. at 1; Pl.2d Mem. at 1, 2). In addition, Plaintiff contends that “he was not afforded the opportunity to participate
in a hearing to refute the charges against [him].” (Pl. Reply at 2 .) These claims, which the Court liberally construes as due
process claims arising under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), 4
presumably would not be precluded by the ADEA.
*5 Nonetheless, Plaintiff's proposed constitutional claims would still be subject to immediate dismissal, if the Court were to
permit them to be asserted. First, a Bivens action “may not be brought against federal agencies or federal employees acting
in their official capacity,” as “[t]he United States has not given its consent to be sued for damages arising from constitutional
violations.” Tennant v. U.S. Bureau of Prisons, No. 02 Civ. 0558(AWT), 2003 WL 1740605, at *2 (D.Conn. Mar. 29, 2003)
(citing F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994); United States v. Testan, 424 U.S. 392 (1976)). Second, to the extent that
Plaintiff seeks to add claims against Carroll and Infiesta in their individual capacities, Plaintiff's claims would also fail because,
“[i]n the context of federal employment, the Supreme Court has declined to imply a Bivens remedy.” Id. (citing Bush v. Lucas,
462 U.S. 367, 368 (1983)). “The remedial scheme established by the CSRA precludes federal civil service employees from
challenging adverse employment decisions through Bivens actions for money damages.” Dotson, 398 F.3d at 168; see also
Pollock v. Ridge, 310 F.Supp.2d 519, 529 (W.D.N.Y.2004) (noting that “courts have uniformly refused to recognize that [Bivens
] claims lie in the context of federal employment”) (citations omitted).
In particular, courts have dismissed procedural due process claims brought by federal civil service employees alleging, as
Plaintiff seeks to allege, that their employers or supervisors did not provide them with adequate notice or an opportunity to
be heard before subjecting them to adverse employment actions. See Ghaly v. U.S. Dep't of Agriculture, 228 F.Supp.2d 283,
290-91 (S.D.N.Y.2002); Dotson v. Griesa, No. 99 Civ. 11713(RCC), 2001 WL 293962, at *4 (S.D.N.Y. Mar. 26, 2001), aff'd 398
F.3d 156 (2d Cir.2005); Williams, 791 F.Supp. at 999; see also Pollock, 310 F.Supp.2d at 529 (dismissing Bivens claim against
individual defendants alleging that they violated her constitutional right to due process because plaintiff had “other remedies
available to her”). A federal employee may not bring such an action “because [the CSRA's] remedial scheme clearly recognizes
a remedy for violations of constitutional rights.” Williams, 791 F.Supp. at 999; see also Dotson, 2001 WL 293962, at *3 (noting
that “the CSRA expressly recognizes a remedy for constitutional challenges by employees”) (citing 5 U.S.C. § 2301(b)(2)).
Permitting such claims under Bivens “would, in effect, allow a dissatisfied federal employee to bypass the applicable ... statutory
schemes and pursue a judicially created private remedy in a court of law, thereby ignoring Congressional intent altogether.”
Pollock, 310 F.Supp.2d at 529. 5
Finally, the Court notes that the cases cited by Plaintiff do not support his position that he may bring an action against Carroll
and Infiesta for constitutional violations. Neither Burlington Northern & Santa Fe Ry. Co. v. White, --- U.S. ----, 126 S.Ct. 2405
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(2006), nor Kessler v. Westchester County Dep't of Social Servs., 461 F.3d 199 (2d Cir.2006) (cited by Plaintiff in Pl.2d Mem.
at 1, 2), involved any constitutional claims. Rather, in both cases, plaintiffs alleged discrimination and retaliation claims arising
under the federal anti-discrimination statutes. See Burlington, 126 S.Ct. 2405 (alleging sex discrimination and retaliation in
violation of Title VII); Kessler, 461 F.3d 199 (alleging discrimination and retaliation in violation of Title VII and the ADEA).
The other cases on which Plaintiff relies, Bizzarro v. Miranda, 394 F.3d 82 (2d Cir.2005) (cited by Plaintiff in Pl.2d Mem. at 2),
and Munafo v. Metro. Transp. Authority, 285 F.3d 201 (2d Cir.2002) (cited by Plaintiff in Pl. Reply at 2), both involved claims
by state, not federal, employees, and thus the CSRA did not apply.
*6 Accordingly, Plaintiff's constitutional due process claims against Carroll and Infiesta, whether asserted against them in
their official or individual capacities, would not survive a motion to dismiss, and Plaintiff's proposed amendment to add such
claims must be rejected as futile.
CONCLUSION
For all the foregoing reasons, Plaintiff's motion for reconsideration is granted, but, upon reconsideration, the Court adheres to
its prior decision denying Plaintiff leave to file a Second Amended Complaint.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 2668511
Footnotes
1 In his Amended Complaint, in addition to alleging ADEA claims, Plaintiff also alleged claims arising under “the Privacy
Act of 1974,” 5 U.S.C. § 552a (Amended Complaint, dated Dec. 7, 2006 (Dkt.19), ¶ 25), and the Civil Service Reform
Act (“CSRA”), 5 U.S.C. §§ 1101 et seq. (id. ¶ 26 (citing 5 U.S.C. §§ 2301, 2302)).
2 Plaintiff also appealed the Court's July 11 Order to the district court. (See id.)
3 In any event, the Second Circuit “previously ha[s] considered claims raised by pro se litigants for the first time in motions
for reconsideration.” Chang v. United States, 250 F.3d 79, 86 (2d Cir.2001) (citing Spencer v. Doe, 139 F.3d 107, 112 (2d
Cir.1998)); see also Juliano v. DeAngelis, No. 06 Civ. 1139(GLS) (DRH), 2007 WL 2454216, at *2 n. 4 (N.D.N.Y. Aug.
23, 2007) (“While a motion for reconsideration is not an opportunity to raise new arguments, considering that [plaintiff]
is pro se, the court will nonetheless discuss the merits of th[e] claim.”).
4 In Bivens, “the Supreme Court recognized as implicit in the rights guaranteed by the Fourth Amendment a cause of
action for money damages against federal officials, sued in their individual capacities, who had allegedly violated
those rights.” Dotson v. Griesa, 398 F.3d 156, 165-66 (2d Cir.2005). Although Bivens involved a Fourth Amendment
claim, the Supreme Court has since found that Bivens actions are available to remedy certain violations under the
Fifth Amendment's due process clause. See id. (citing Davis v. Passman, 442 U.S. 228, 244-49 (1979)); Williams v.
McCausland, 791 F.Supp. 992, 998 (S.D.N.Y.1992) (citation omitted).
5 Further, to the extent that Plaintiff seeks to add a claim for equitable relief to remedy the alleged constitutional violations,
Plaintiff's amendment would also be futile. See Dotson, 398 F.3d at 182 (concluding that “Congress has clearly expressed
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its intent to preclude federal civil service personnel ... from attempting to supplement statutory remedies ... with separate
suits at equity raising constitutional challenges to adverse employment actions”).
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