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denying a pro se plaintiff's request for additional discovery because the defendants complied with their discovery obligations, and the plaintiff had a "full and fair opportunity to conduct discovery demonstrated an ability to obtain orders from [m]agistrate [j]udge] ...
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06 Civ. 2362 (PKC) (HBP).
May 20, 2008
MEMORANDUM AND ORDER
Plaintiff Anthony Arriaga alleges that he was wrongfully classified as a member of a "Security Risk Group" ("SRG") at the Rikers Island facility operated by the City of New York. He was placed in this classification, he asserts, because of a mistaken belief on the part of members of the facility staff, including the individual defendants, that he was associated with a gang known as the Bloods. He asserts that he was placed in this classification in violation of his right to due process protected by the Fourteenth Amendment. Proceeding pro se under 42 U.S.C. § 1983, he seeks compensatory damages and removal of his name from the SRG list. Defendants have moved for summary judgment on the ground, among others, that an SRG classification does not implicate a constitutionally-protected liberty interest. For the reasons outlined below, defendants' motion is granted.
I. Facts Giving Rise to the Claim
Because plaintiff is the non-movant, I accept his version of the facts and such other facts tendered by defendants that are not disputed by plaintiff. All reasonable inferences are drawn in plaintiff's favor.
Plaintiff twice has been incarcerated at the New York City Department of Corrections facility at Rikers Island. The first occasion was between June 20, 2000 and September 8, 2000, in connection with an arrest for attempted murder, and the second was between May 22, 2003 and February 3, 2006, in connection with an arrest for second-degree murder. (Rubin Decl., Exh. F, ¶¶ 10, 14, 22.)
On November 18, 2005, plaintiff was found guilty of second-degree murder in New York Supreme Court, Bronx County. (Id., Exh. H.) On January 19, 2006, he was sentenced to twenty-five years to life imprisonment. (Id.) Plaintiff is now serving his sentence at a state facility, Shawangunk Correctional Facility ("Shawangunk") in Wallkill, New York, where his inmate file contains no reference to having a gang affiliation. (Arriaga 12/05/07 Decl. at 3, ¶ 5.)
During his second period of incarceration at Rikers Island, plaintiff learned that he had been classified as a gang member after a security officer allegedly observed him greeting another prisoner with hand signals typically used by members of the Bloods street gang. (Rubin Decl., Exh. G.) Plaintiff asserts that, as a result of placement on the SRG list, he has been threatened, harassed and had property destroyed by prison officials; he also alleges that he was subjected to excessive searches and has "even been confronted by real gang members. . . ." (Amended Compl. at 3.)
On July 1, 2004, plaintiff filed a grievance with the Rikers Island Inmate Grievance Resolution Committee ("IGRC") requesting removal from the SRG list because he had no gang affiliation. (Arriaga 10/04/07 Decl., Attachment.) On July 6, 2004, the IGRC "found that [Arriaga] must appeal this matter via writ court" because the "requested grievance has been rejected as non grievable." (Id.) On July 8, 2004, plaintiff sent a letter of "formal complaint" regarding his SRG classification and noted that he is not a gang member and that his grievance related to his SRG status had been rejected. (Rubin Decl., Exh. A.) Plaintiff submitted two subsequent complaint letters, setting forth the same information and requesting that he be removed from the SRG list. (Id.) Plaintiff filed a New York C.P.L.R. Article 78 proceeding in New York Supreme Court, Bronx County which was dismissed on November 1, 2006. (Arriaga Decl., Attachment.)
II. Procedural History and Plaintiff's Efforts to Reopen Discovery
A. Standard Under Rule 56(f)
In opposition to summary judgment, plaintiff urges that he be permitted to conduct additional discovery, despite the conclusion of the discovery period more than three months prior to the filing of the motion. Courts "must afford 'special solicitude' topro se litigants confronted with summary judgment motions."Sereika v. Patel, 411 F. Supp. 2d 397, 404 (S.D.N.Y. 2006) (quoting Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988)). As such, the Court treats the requests for further discovery made in plaintiff's declarations in opposition to summary judgment as a Rule 56(f), Fed.R.Civ.P. motion, which states in relevant part that "[i]f a party opposing the [summary judgment] motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable . . . discovery to be undertaken . . . (3) issue any other just order." Under Rule 56(f), a court may permit further discovery in the interests of justice prior to deciding a summary judgment motion.Bank of Am. Nat'l Trust and Savings Ass'n v. Envases Venezolanos, S.A., 740 F. Supp. 260, 269 (S.D.N.Y. 1990), aff'd, First Nat'l Bank Maryland v. Envases Venezolanos, 923 F.2d 843 (2d Cir. 1990). A litigant asserting that he was denied adequate discovery must submit a Rule 56(f) affidavit; failure to comply with the procedural requirement of such an affidavit "is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate." Di Benedetto v. Pan Am World Service, Inc., 359 F.3d 627, 630 (2d Cir. 2004) (internal quotation marks and citation omitted). A proper affidavit under Rule 56(f) should specify: 1) "the nature of the uncompleted discovery;" 2) "how the facts sought are reasonably expected to create a genuine issue of material fact;" 3) the "efforts the affiant has made to obtain those facts;" and 4) why those efforts did not bear fruit.Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994) (citations omitted).
B. Plaintiff was Afforded a Full and Fair Opportunity to Conduct Discovery
The complaint in this matter was filed by plaintiff on March 27, 2006. (Doc. # 2.) On April 27, 2006, plaintiff filed an amended complaint and, on the following day, the case was reassigned to the undersigned. (Doc. #s 4 and 5.) The case was referred to Magistrate Judge Pitman for general pretrial supervision. (Doc. # 6.) In a December 11, 2006 Order, Judge Pitman set June 7, 2007 as the cutoff date for fact discovery. (Doc. # 17.)
Plaintiff timely moved to compel answers to interrogatories and production of documents. Magistrate Judge Pitman granted the motion, directing defendants to produce all documents requested and answer all interrogatories by February 8, 2007. (Doc. Entry 1/31/07.) When an issue of full compliance arose, Magistrate Judge Pitman entered an Opinion Order again directing defendants to answer all interrogatories and produce all documents requested "except those that present a genuine risk to the safety of Dep't of Corrections personnel. . . ." (Doc. # 21.) A further Order was entered by Magistrate Judge Pitman on April 13, 2007, confirming that discovery would close on June 7, 2007. (Doc. # 24.)
On September 14, 2007, defendants filed the summary judgment motion currently before the Court. (Doc. #s 36-39.) Plaintiff submitted a declaration in opposition to the motion which did not address the merits but, instead, sought "an adjournment to this motion until Defendants receive the complete Second Amended Complaint" and until defendants produce certain documents such as, inter alia, "any and all video recordings of searches housing units that plaintiff resided in during his pre-trial detention" and "any and all documents related to plaintiff being searched." (Arriaga 10/04/07 Decl. at 2.) A proposed second amended complaint was attached to the declaration. (Id.)
The Court entered an Order that if plaintiff did not submit a substantive response to the summary judgment motion by December 10, 2007, the motion would be deemed fully submitted. (Doc. # 35.) Plaintiff filed a declaration in which he asserted that he had still not received certain discovery materials that he had requested. (Arriaga 12/05/07 Decl.)
On May 1, 2008, the Court issued an order directing defendants to respond by submitting a declaration addressing their compliance with Magistrate Judge Pitman's February 27, 2007 discovery Order. (Doc. # 41.) Defendants submitted the declaration of Benjamin Stockman verifying their compliance and noting that they also responded to two additional sets of interrogatories and document requests from plaintiff dated March 10, 2007 and June 2, 2007. (Doc. # 43.)
The plaintiff seeks discovery concerning an inmate-on-inmate assault resulting in a cheekbone fracture while at Rikers Island. In his proposed Second Amended Complaint, he describes the assault as "possibly" caused by the SRG designation. At his deposition, he described the relationship between the SRG classification and the assault as "possible." (Arriaga Dep. at 21.) No failure-to-protect claim is asserted in the original complaint, the amended complaint or the proposed Second Amended Complaint. An objection was asserted to the inmate-on-inmate assault information, and the matter was not pressed by plaintiff before the cut-off of discovery — perhaps because he had waited until five days before the close of discovery to seek the material.
Plaintiff did make efforts to obtain discovery of videotapes which plaintiff believes would have shown that he was subjected to excessive searches. Defendants assert that none of the requested videotapes were produced because they were not able to locate them. (Stockman Decl. at 38.)
Based upon a review of the Stockman Declaration, this Court is satisfied that defendants are in compliance with their discovery obligations. Plaintiff had a full and fair opportunity to conduct discovery. Plaintiff demonstrated an ability to obtain orders from Magistrate Judge Pitman where he perceived a degree of noncompliance by defendants. He allowed the discovery period to close on June 7, 2007 without pressing the Magistrate Judge for further relief. He may not wait until receipt of the summary judgment motion, three months after the close of discovery, to renew areas or raise new areas on which he previously had an opportunity to conduct discovery.
III. Summary Judgment Standards
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it "might affect the outcome of the suit under the governing law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set out specific facts showing a genuine issue for trial," and cannot rest "merely on allegations or denials" of the facts asserted by the movant. Rule 56(e)(2), Fed.R.Civ.P. In raising a triable issue of fact, the non-movant carries only "a limited burden of production," but nevertheless "must 'demonstrate more than some metaphysical doubt as to the material facts,' and come forward with 'specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)).
An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248. The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal quotations and citations omitted);accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. Rule 56(c), Fed.R.Civ.P. In the absence of any disputed material fact, summary judgment is appropriate. Id.
"[W]hen the plaintiff proceeds pro se, as in this case, a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations." Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005) (quoting Shakur v. Selsky, 391 F.3d 106, 113 (2d Cir. 2004)); see also Muntaqim v. Coombe, 366 F.3d 102, 105 n. 3 (2d Cir. 2004), vacated on other grounds, 449 F.3d 371 (2006) (stating pro se pleadings should be read "liberally and interpret[ed] . . . to raise the strongest arguments that they suggest") (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)). Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and "a pro se party's 'bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." See Odom v. Keane, 95 Civ. 9941, 1997 WL 576088, at *3 (S.D.N.Y. Sept. 17, 1997) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1995)). Specifically, mere "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996) (citingMatsushita, 475 U.S. at 587 (1986)); see also Anderson, 477 U.S. at 249-50 (noting that summary judgment may be granted if the evidence is "merely colorable" or "not significantly probative") (citations omitted).
IV. Due Process Claim Arising From SRG Classification
To prevail on a claim under section 1983, a plaintiff must establish that a person acting under color of state law deprived him of a right protected by the Constitution or federal law. See Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990). Here, there is no dispute that the individual City prison officers or officials were operating under color of state law. The federally-protected right asserted by plaintiff is the right to due process of law protected by the Fourteenth Amendment. He claims that he was deprived of due process of law when, without a hearing or adequate investigation, prison officials classified him as a member of a SRG. He further asserts a due process violation because they failed to correct the classification after plaintiff asserted that he was not a member of a gang.
A. Standard to be Applied in Assessing Whether a Loss of Liberty Has Occurred
The Fourteenth Amendment prohibits the states from depriving persons of "life, liberty or property without due process of law." U.S. Const. amend. XIV, § 1. In determining whether plaintiff's SRG classification violated his due process rights, the Court must first determine whether his prior non-SRG status is "a property or liberty interest protected by the Constitution." Perry v. McDonald, 280 F.3d 159, 173 (2d Cir. 2001) (citation and internal quotation marks omitted). "It is well settled that only a limited range of interests will qualify as a liberty interest protected by the Fourteenth Amendment to the United States Constitution." Meachum v. Fano, 427 U.S. 215, 224 (1975) (due process clause does not entitle state prisoner to hearing prior to being transferred to another prison with substantially less favorable prisoner conditions).
In Sandin v. Conner, 515 U.S. 472 (1995), the Court concluded that the plaintiff, a convicted inmate, had no protected liberty interest in avoiding a 30-day disciplinary segregation because it did not "present a dramatic departure from the basic conditions of [plaintiff's] indeterminate sentence" thereby "present[ing] the type of atypical, significant deprivation in which a State might conceivably create a liberty interest." Id. at 485-86. "After Sandin, it is clear that the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves 'in relation to the ordinary incidents of prison life.'" Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (quoting Sandin, 515 U.S. at 484).
For the majority of plaintiff's time in City custody, he was a pretrial detainee. Sandin does not fully apply to pretrial detainees. Iqbal v. Hasty, 490 F.3d 143, 163 (2d Cir. 2007);Benjamin v. Fraser, 264 F.3d 175, 188-89 (2d Cir. 2001) ("Benjamin I"). While noting that Sandin is not controlling on all aspects of a claim by a pretrial detainee, Iqbal nevertheless examined whether the conditions alleged by the pretrial detainee were atypical and significant departures from the expected consequences of pretrial detention. 490 F.3d at 163.
I need not plunge into an analysis of whether some different standard applies between the adjudication of guilt and sentencing. See Iqbal, 490 F.3d at 163 n. 8.
Pre-Sandin, the Second Circuit had declined to recognize a constitutionally-protected liberty interest in a convicted federal prisoner's avoidance of a "Centrally Monitored Case" or "CMC" classification, which precluded the inmate's eligibility for transfers, furloughs or work release without approval from a central or regional office. Pugliese v. Nelson, 617 F.2d 916, 923 (2d Cir. 1980). Judge Crotty has applied the analysis in Pugliese to a CMC designation of a state pretrial detainee. Palacio v. Ocasio, No. 02 Civ. 6726 (PAC), 2006 WL 2372250, at *8 (S.D.N.Y. Aug. 11, 2006).
"Pretrial detainees have not been convicted of a crime and thus 'may not be punished in any manner — neither cruelly and unusually nor otherwise.'" Iqbal at 168 (quoting Benjamin v. Fraser, 343 F.3d 35, 49-50 (2d Cir. 2003) ("Benjamin II")). "[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to 'punishment.' Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees." Bell v. Wolfish, 441 U.S. 520, 539 (1979) (footnote omitted).
In view of the foregoing, this Court will consider whether plaintiff has been subjected to any condition that is other than the ordinary consequence of pretrial detention. For reasons set forth herein, the Court concludes that he has not been subjected to any such condition. This Court will also examine whether the SRG classification resulted in a condition of pretrial detention that was not reasonably related to a legitimate governmental objective. For the reasons herein, the SRG classification was reasonably related to the safety and security of the facility and those it housed.
Necessarily, the foregoing disposes of the issue of whether any condition was an atypical, significant deprivation beyond that associated with the ordinary conditions of pretrial detention.
B. SRG designation Did Not Result in a Loss of Liberty.
Facility staff members are trained in gang related activity, including recognizing different gang signs, symbols and language. (Declaration of William Sheridan ¶ 5.) SRG classification is an "observation tool" used by facility staff to track inmates, including those believed to be gang members. (Id. ¶ 4.) SRG-classified inmates are not handcuffed differently than non-SRG inmates; they do not carry identification cards indicating their SRG status; they are not required to wear clothing indicating SRG status; and they are not "subject to searches solely because of their SRG status." (Id. ¶¶ 6-9.)
Plaintiff received an infraction for possession of a weapon when a weapon was found in his cell on August 8, 2000. (Id. ¶¶ 11-12.) On August 23, 2003, plaintiff was observed greeting a Blood member with a hand sign and was classified as SRG. (Id., ¶¶ 15-16.) Thereafter, he "received an infraction" for fighting with another inmate and was involved in an assault on another inmate. (Id., ¶¶ 17-18.) Plaintiff also "received an infraction for making threats against staff." (Id., ¶ 19.) The defendants argue that the incidents, both pre and post SRG designation, are relevant because they demonstrate a reason, apart from mere SRG designation, for a higher than usual number of searches of plaintiff. Because plaintiff had a history of infractions for having contraband and for fighting with other inmates, he was more likely to be searched than other inmates who had no such histories. (Sheridan Decl. ¶¶ 11-13, 17-21.)
Although plaintiff asserts that he was subject to excessive searches, there is no evidence in the record that any search was conducted because of his SRG status. Plaintiff concedes that inmates not designated as SRG were subject to strip search. (Arriaga Dep. at 17.) Plaintiff's subjective belief, unsupported by facts, that the searches were motivated by SRG status is insufficient to defeat summary judgment.
Plaintiff testified that he was unaware of the date he was placed on the SRG list, indicating that no detectable hardship befell him from the classification. (Arriaga Dep. at 18-19.) He only learned he had been subject to an SRG classification because a security officer told him. (Arriaga 6/13/07 Dep. at 19.) Plaintiff also testified that he was not handcuffed differently than non-SRG inmates (Id. at 35-36), and that he was not required to wear different clothing than non-SRG inmates. (Id.) He further testified that he was unaware of any way in which an inmate who was placed on the SRG list could be identified as such by another inmate. (Id. at 36.)
Although plaintiff testified that he believed his SRG status put him "in danger with other gang members" he said he has not been in any fights because of his SRG status:
Q. In your opinion did you ever get involved in a physical altercation with another inmate because you were an SRG inmate?
A. Verbally or are you talking about physically?
Q. I'm talking physically.
A. No. I haven't got into no fights over it.
(Arriaga 7/2/07 Dep. at 20.) That answer is seemingly contradicted by a later answer he provided during the same deposition:
Q. You said that [SRG status] puts your life in danger, but you were never assaulted as a result of being placed on SRG; correct?
A. I was assaulted on what's the amended complaint, what I told you about, which is possibly due to that SRG.
Q. But you don't know that you were assaulted because of SRG?
A. Not yet.
Q. It is your speculation that it may or may not have been as a result of SRB; correct?
A. It's possible.
(Id. at 21.)
Defendants have met their initial summary judgment burden in coming forward with evidence that the SRG classification is merely an observation tool and does not result in any change in the condition of pretrial detention. The classification permits the monitoring of gang-related activities; it provides the institution with knowledge of which detainees ought to be kept separate from other detainees. It is reasonably related to a legitimate governmental function of operating a safe and secure facility. After a full and fair opportunity to conduct discovery, plaintiff has come forward with no evidence which would permit a reasonable jury to find in his favor.
V. Equal Protection
Reading plaintiff's pleading liberally, it appears he may also be claiming that his SRG classification denied him the equal protection of laws. U.S. Const. amend. XIV, § 1. Prisoners are not considered a suspect class under the Equal Protection Clause.Lee v. Governor of State of New York, 87 F.3d 55, 60 (2d Cir. 1996). Plaintiff asserts no other basis for membership in a suspect classification. Although plaintiff makes the conclusory statement that he was deprived of his "rights under the 14th Amendment which states that no one may treat you differently or discriminate against you," he offers no allegations, facts or assertions to substantiate any discrimination based upon an impermissible classification.
To prevail on a "class of one" type equal protection claim, a plaintiff must establish that "(a) the person, compared with others similarly situated, was selectively treated; and (b) that 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." Giordano v. City of New York, 274 F.3d 740, 750-51 (2d Cir. 2001) (quoting Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999)). Plaintiff would need to establish "irrational and wholly arbitrary acts" and "intentional disparate treatment." Giordano, 274 F.3d at 751 (citations omitted); see also Hayut v. State Univ. of N.Y., 352 F.3d 733, 754 (2d Cir. 2003) (summary judgment appropriate on "class of one" equal protection claim brought under section 1983 when the court is presented only with conclusory allegations that a defendant intentionally treated a plaintiff differently from others similarly situated and when there is "no evidence that . . . defendants embarked on any obstructive scheme, or that the allegedly differential treatment . . . was either intentional or lacked a rational basis.").
Plaintiff has come forward with no facts in response to defendants' motion which would permit a reasonable jury to find in his favor on an equal protection claim.
VI. Amendment To Complaint
As noted, in response to defendants' summary judgment motion, plaintiff sought leave to file a Second Amended Complaint in which he restates his previously asserted allegations regarding the SRG classification and responds to an inquiry on the form complaint concerning injuries sustained related to the events alleged. In response to the inquiry, he states "possibly the assault that happened to [sic] on Rikers Island when I had my cheekbone fractured. I had to have surgery and a plate put in my face." (Draft Second Amended Complaint.) Plaintiff had a full and fair opportunity in discovery to tie this assault to his SRG classification, whether or not it was included in a further amended pleading. There is no evidence that the assault was a consequence of the SRG classification. If plaintiff had wanted to bring a stand-alone failure-to-supervise claim, he would have had to demonstrate that he exhausted his administrative remedies or was excused from doing so. He would have had to identify the individual defendants who were deliberately indifferent to a known risk to him. It would result in prejudice to the defendants to have a new claim asserted after discovery is closed and a motion for summary judgment has been briefed and filed. Leave to file a Second Amended Complaint is denied.
VII. Conclusion
For all the foregoing reasons, defendants' motion for summary judgment is granted. The Clerk is directed to enter judgment in favor of defendants.
SO ORDERED.