Opinion
03 Civ. 0068 (DAB) (AJP).
January 31, 2005
REPORT AND RECOMMENDATION
To the Honorable Deborah A. Batts, United States District Judge:
Pro se plaintiff Edward Dawkins, an inmate in the custody of the Department of Correctional Services, brings this action against ninety-three defendants alleging what appears to be various forms of retaliation for exercising his First Amendment rights, medical deliberate indifference, and other violations. (Dkt. No. 98: Second Am. Compl. [hereafter "Compl."].) The complaint, however, while factually quite lengthy, fails to identify what claims plaintiff is asserting. Presently before the Court is defendants' motion to dismiss and for summary judgment for failure to exhaust administrative remedies. (Dkt. No. 141;see also Dkt. Nos. 142-45, 150.) For the reasons stated below, the Court should grant defendants' motions and Dawkins' entire complaint should be dismissed (some aspects with and others without prejudice).
FACTS
Dawkins' 104-page, 340-paragraph Second Amended Complaint (hereafter, "complaint") named ninety-three defendants. Of the original ninety-three defendants, Dawkins voluntarily dismissed eleven, leaving eighty-two defendants. Another eight defendants, Goidel, Isiaddinso, Zwillinger, Schwartz, Wilkerson, Brizzel, Gatto and Lyons are named only in the Complaint's caption and are not mentioned in the body of the Complaint. (See Defs. 56.1 Stmt. Ex. A: "Summary of Plaintiff's Allegations Against Each Defendant.") Of the remaining seventy-four defendants, thirty-one were not named or identified in any grievance Dawkins filed. (Dkt. No. 142: Defs. 56.1 Stmt. ¶ 3 n. 1; Dkt. No. 144: Small Aff. ¶ 6.) Of the sixty grievances that Dawkins claims he filed (Compl. at 1-2), only fifty-one represent grievances that Dawkins actually filed and that relate to his present allegations. (Small Aff. ¶¶ 3-5 nn. 2-3.)In addition to the defendants not named in any grievance, Dawkins initiated but did not complete the grievance procedure against eight defendants: Briggs, Zeeb, Hudson, Edwards, Woodward, Wendland, Cole, and Febrizio. (Defs. 56.1 Stmt. ¶ 12; Small Aff. ¶¶ 8-23.)
Defendants admit that Dawkins has fully exhausted his claims against thirty defendants. (Defs. 56.1 Stmt. ¶ 13; Small Aff. ¶¶ 24-53.)
Defendants concede that Dawkins claims against these thirty defendants are exhausted: Basley, Gennorell, Beckwith, Graham, Stephens, Pecenso, Conklin, Roark, Schneeberger, Moricone, Venettozzi, Manning, Zaccagnino, Buonado, Stone, Supple, Ercole, Leclaire, Farao, Marshall, Collins, Pelc, Klysezjko, Schneider, Mazzucca, Cunningham, Dillard, Cocuzza, Swanson, and Larson. (Defs. 56.1 Stmt. ¶ 13; see Small Aff. ¶¶ 24-53.)
As to the thirty defendants against whom claims are exhausted, and the six additional defendants against whom claims are non-grievable (see n. 3 above), Dawkins asserts specific factual allegations in his 340 paragraph complaint. (See generally Compl.) However, he has not specifically asserted any causes of action, and the Court therefore has had to deduce from the facts alleged what claims Dawkins may be attempting to assert. Dawkins appears to allege that much of the events that occurred were due to retaliation against him for lodging other grievance complaints. Dawkins also appears to have medical indifference claims and a variety of uncategorizable "violations" that range from disagreements with disciplinary hearing results to name-calling to denial of access to a copy machine.
Property Claims Correctional Officers Jay Basley and R. Gennorell
Dawkins asserts that Corrections Officers Basley and Gennorell retaliated against him for a prior complaint against others by improperly packing his food, including discarding some of it, on March 10, 2003. (Compl. ¶¶ 291-93.)
Captain Arlan Pelc
Dawkins asserts that on September 18, 2001, Capt. Pelc ordered him to send home some of his property; that in March 2003, Capt. Pelc knew about his broken typewriter and told Dawkins that some of his other property was missing from storage; that it was partially Capt. Pelc's decision to keep him working in the laundry; and that Capt. Pelc lied about why Dawkins was reassigned from his cook position. (Compl. ¶¶ 98, 298, 302, 320, 321.) Dawkins alleges that Capt. Pelc is retaliating against him for a January 2003 complaint. (Compl. ¶ 302.)
Lieutenant James Buonato
Dawkins asserts that on July 9, 2002, Lt. Buonato ordered him to place his sleeping disorder machine "in his property" because electrical medical devices were not allowed in the "S.H.U." Dawkins may be asserting a medical indifference claim against Lt. Buonato. (Compl. ¶ 205.) Dawkins alleges that Lt. Buonato is retaliating against him for a January 2003 complaint. (Compl. ¶ 302.)
Correctional Officer Kyle Collins
Dawkins alleges that C.O. Collins threw Dawkins' property around his "cube" after Dawkins asked him to place it properly where it belonged. (Compl. ¶ 215.) Dawkins alleges that C.O. Collins retaliated by telling Dawkins that he would be placed in the S.H.U. and also by writing a misbehavior report on October 7, 2002. (Compl. ¶¶ 215, 228-29.) Dawkins further alleges that C.O. Collins called him names, threatened, and harassed him. (Compl. ¶¶ 234-35.)
Lieutenant Thomas R. Szymanwiez
Dawkins alleges that Lt. Szymanwiez had some of Dawkins' personal property removed in retaliation for filing two 2001 complaints. (Compl. ¶ 138.) Lt. Szymanwiez locked Dawkins in the S.H.U. for forty-five minutes on October 24, 2001 while another defendant searched his cube and threatened him with more S.H.U. time and keep lock sanctions in retaliation for filing an appeal. (Compl. ¶¶ 127-28, 131.)
Medical Claims Nurse Patricia Pecenco
Dawkins alleges that Nurse Pecenco waited twelve hours before she examined him and that she refused to transfer him to the infirmary where he could use his C.P.A.P. (sleep apnea treatment) machine, and that when he complained to her of injuries she replied that it was swelling and it would go down. (Compl. ¶ 206, 212.) Dr. John M. Supple
Dawkins disagreed with Dr. Supple's medical decisions: not to give him B-12 or iron and not to x-ray his wrists or his hand for arthritis in March, June and July 2002 (Compl. ¶¶ 189-90, 201-02); not to order a new mask for his C.P.A.P. machine (Compl. ¶ 202); improper treatment for his sleep disorder (Compl. ¶¶ 240-43); and his decision to disregard Dawkins' request for extra mattresses and large handcuff permits. (Compl. ¶ 324.) Dawkins also asserts that Dr. Supple refused to see him a number of times or delayed his appointment. (Compl. ¶¶ 237, 239.)
Nurse Nancy Faoro
Dawkins' states that in November 2001 and February 2002, Nurse Faoro made notations that his C.P.A.P was not working properly and was in need of more repair. (Compl. ¶ 247.) This appears to be beneficial to Hawkins. Dawkins claims that in February 2003, when he was being admitted to the S.H.U., Nuse Faoro failed to write down his medical history and said she would do nothing about his sleep disorder. (Compl. ¶¶ 271-72.)
Dr. Richard Klyszejko
Dawkins asserts that Dr. Klyszejko, who is acting indifferently to his medical needs, waited too long to take his vital signs (Compl. ¶ 207), rescheduled his medical visit (Compl. ¶ 239), and in response to his complaint about walking up and down stairs at Fishkill, responded that Fishkill is not an appropriate facility for Dawkins. (Compl. ¶ 116.) Sergeant Larson
Despite the fact that Sgt. Larson "knew [Dawkins'] physical therapy was more important than the IGRC hearing," he told Dawkins that he had to go to the IGRC office unless he had a no work permit from a doctor. (Compl. ¶¶ 122-23.)
Sergeant John H. Conklin
In February, 2002, Sgt. Conklin notified another defendant about Dawkins' sleeping disorder. (Compl. ¶ 106.) This appears to be of benefit to Dawkins.
Disciplinary Hearing Claims and Claims against Prison Supervisors Deputy Superintendent/Security Robert Ercole
Dawkins alleges that when he spoke to Supt. Ercole about officers' retaliation against him in August 2001, Supt. Ercole told him that he was not going to protect Dawkins from the staff but that he would transfer him out of Fishkill if he was unhappy there; later in the month Dawkins decided that he did want to transfer and wrote to Supt. Ercole in October to ask for a transfer. (Compl. ¶¶ 88, 130, 311.) Dawkins further asserts that in January 2002, Supt. Ercole affirmed a disciplinary decision of another defendant against him. (Compl. ¶¶ 173-74.) Dawkins states that on July 19, 2002, his blood pressure was not taken and that the only person he had spoken to about his sleep condition was Supt. Ercole, and further asserts that Supt. Ercole violated his rights by being in charge of security at the prison and denying him treatment for his sleep disorder. (Compl. ¶¶ 208, 211.) Dawkins further asserts that on March 18, 2003, as per Supt. Ercole's orders, he was moved from his job in the A-21 mess hall, and that Supt. Ercole was retaliating against him for a January 23, 2003 complaint. (Compl. ¶¶ 300, 302.) IGP Supervisor Michelle P. Stone
Dawkins alleges that on January 30, 2002, Stone did not hold a fair and impartial hearing on one of his grievances, and that a week later Stone dismissed another grievance (the latter would appear to be of benefit to Dawkins). (Compl. ¶ 185-86.)
Deputy Commissioner Lucien J. Leclaire
Dawkins asserts that on January 24, 2003, he wrote a letter to Commissioner Laclaire regarding "retaliatory motivated disciplinary." (Compl. ¶ 264.)
Deputy Superintendent Raymond J. Cunningham
Dawkins alleges that on August 13, 2001 he wrote to Supt. Cunningham to ask for a transfer out of Fishkill, but that he never received a written response. (Compl. ¶ 88.) Dawkins further asserts that Supt. Cunningham reviewed an appeal and found no reason for modification, and that in January 2002, Supt. Cunningham told him that he had too many bags to be transferred out of Fishkill. (Compl. ¶¶ 130, 183.)
Superintendent William Mazzuca
Dawkins claims that Supt. Mazzuca did not respond to his appeal of an April 1997 hearing. (Compl. ¶ 79.) Dawkins alleges that he wrote a letter to Supt. Mazzuca concerning sexual assault by a staff member and reading of legal documents in August 2001. (Compl. ¶ 93.) Dawkins further asserts that he wrote several letters to Supt. Mazzuca about various complaints, and that he filed complaints with Supt. Mazzuca in September, October and November 2001. (Compl. ¶¶ 99, 127, 131, 134, 307, 313.) Dawkins asserts that Supt. Mazzuca is "grossly negligent in supervising the area sergeant" who committed a "wrongful act." (Compl. ¶ 258.) Director Donald Selsky
Dawkins states that on July 11, 2000, Selsky reversed and dismissed one of his misbehavior reports. (Compl. ¶ 57.) This appears to be another background fact, but of conduct beneficial to Dawkins.
Lieutenant Kendell W. Garrett
Dawkins states that in October 2002, Lt. Garrett found him not guilty of charges brought against him. (Compl. ¶ 230.) Again, a benefit not detriment to Dawkins.
Lieutenant Lawrence Jones
Dawkins claims that Lt. Jones found him guilty at a September 1999 disciplinary hearing concerning a misbehavior report. (Compl. ¶ 10.) Dawkins also alleges that in May 2000, Lt. Jones deliberately taped over part of another hearing in retaliation for Dawkins complaining about the Woodburn Correctional Facility, and also retaliated against him by finding him guilty at that hearing. (Compl. ¶¶ 49, 52-53.) Dawkins also asserts that Lt. Jones had an extra mattress and pillow confiscated from Dawkins' cell, and that in April 2000, Lt. Jones ordered Dawkins' cell searched in order to force Dawkins to give him information about another inmate. (Compl. ¶¶ 54-55, 340.)
Senior Counselor Warren Friedling
Dawkins states that Friedling found him guilty of a drug-related charge at a September 1999 hearing, which he states was later reversed in response to his letter of reconsideration because he had already been charged for the same conduct in another hearing. (Compl. ¶¶ 13, 15.) Sergeant Patrick J. Meaney
Dawkins states that at an October 25, 2001 violation hearing, Sgt. Meaney imposed a "seven day work detail" and "13 days loss of recreation," and that on the same day Dawkins filed a complaint against Sgt. Meaney concerning work detail. (Compl. ¶¶ 131, 312.)
Captain Gwen Schneider
Dawkins asserts that Capt. Schneider, in response to a complaint against Officer Hanna, stated: "'There is no evidence to support your allegation, therefore I consider this matter closed.'" (Compl. ¶ 125.) Dawkins further alleges that both on November 13, 2001 and during another episode, Capt. Schneider conducted an incomplete and one-sided investigation, the latter of which was for "her own personal reasons." (Compl. ¶¶ 133, 256.) Dawkins also states that during her rounds on February 23, 2003, Capt. Schneider did not stop to talk to him. (Compl. ¶ 286.)
Although Dawkins's asserts a claim of sexual assault by Hanna (Compl. ¶¶ 93-94), the only non-time barred grievance relating to Hanna merely stated that Dawkins was "fearful" of him. (Small Aff. ¶ 6 n. 6).
Prison Administration Claims/Miscellaneous Claims Correctional Officers Christopher Schneeberger and Chris Moricone
Dawkins claims that C.O. Schneeberger was not interviewed for a February 3, 2002 complaint, and that C.O. Moricone was present when C.O. Schneeberger called the grievance office in relation to the complaint. (Compl. ¶ 124.) Correctional Officers Joseph M. Beckwith and Gordon Roark
Dawkins alleges that on July 29, 2002, C.O. Beckwith did not allow him to shop in the commissary with other prisoners in retaliation for writing a grievance against two defendants who he believes are C.O. Beckwith's friends. (Compl. ¶¶ 221-23.) Dawkins further asserts that C.O. Roark likewise stood in the way of his ability to shop by disposing of his commissary sheet, also in retaliation for filing a grievance. (Compl. ¶ 224.)
Correctional Officer Pamela Graham and Sergeant Gary Stephens
Dawkins asserts that C.O. Graham denied him access to the law library after "star[ing] down" at him, and then proceeded to "write [Dawkins] up" at the direction of defendant Sgt. Stephens. (Compl. ¶¶ 248-49.) Dawkins further alleges that Sgt. Stephens violated his First Amendment rights by blocking access to the law library, retaliating against him for a January 24, 2003 complaint against two other defendants, and that when Sgt. Stephens put him in keep lock, his address book and watch were removed from him during a search. (Compl. ¶¶ 250-51, 297, 302.)
Correctional Officer Joseph Marshall
Dawkins asserts that upon arriving at a hearing, C.O. Marshall said to him "I am surprise[d] that you['re] still employed in the mess hall." (Compl. ¶ 261.)
Sergeant John V. Swanson
Dawkins states that "[b]ecause of retaliation" he became fearful of Sgt. Swanson; Dawkins filed complaints against Sgt. Swanson on September 2, 2001 and October 29, 2001. (Compl. ¶ 95 n. 14, ¶¶ 305, 313.) Dawkins further asserts that while he was cleaning the officers' bathroom, Sgt. Swanson and other officers laughed at him. (Compl. ¶ 132.) Correctional Officers Robert Cocuzza and Zaccagnino
Dawkins asserts that someone told him that C.O. Cocuzza called him the "grievance King." (Comp. ¶ 259.) Dawkins further asserts that C.O. Cocuzza searched his bag, escorted him to a hearing fifteen minutes early, and conspired with C.O. Zaccagnino to make it seem that he had a bag of oatmeal in order to "lock [him] up." (Compl. ¶¶ 260-63.) Dawkins also claims that C.O. Zaccagnino and C.O. Cucuzza conspired to "keep lock" him in retaliation for January 2003 complaints, and that in connection with the retaliation, C.O. Cocuzza is responsible for the loss of his mess hall cook position. (Compl. ¶¶ 270, 300, 302, 321.) According to Dawkins, C.O. Zaccagnino said that he would find a way to put him in keep lock. (Compl. ¶ 269.)
Correctional Officer Richard Venettozzi
Dawkins asserts that he and C.O. Venettozzi had an exchange about a complaint he was writing, and that because of retaliation, he became fearful of C.O. Venettozzi. (Compl. ¶ 95 n. 14.) Dawkins further asserts that C.O. Venettozzi ordered him to throw away his clearly labeled legal mail. (Compl. ¶ 326-27.)
Senior Counselor Gilbert Dillard
Dawkins asserts that on March 24, 2003, Dillard informed him that the "main building mess hall" did not want him to work there, and Dillard also was responsible for the decision not to assign him to any food facility, and that Dillard is retailating against him for his January 24, 2003 complaint. (Compl. ¶ 299, 301-02.) Correctional Officer Colleen M. Manning
Dawkins asserts that although C.O. Manning told him that she would have someone drop off his document request, no one did. (Compl. ¶ 179.) Dawkins alleges that on July 31, 2002, C.O. Manning verbally assaulted, threatened and harassed him while he was making copies, and would not let him finish making copies. (Compl. ¶ 226.) Dawkins states that C.O. Manning retaliated against his filing a grievance against her by barring his access to the library and subjecting him to pat frisks when he went to make copies of legal documents. (Compl. ¶ 227.)
Procedural History
On October 15, 2003, Defendants moved to dismiss on several grounds, including failure to exhaust. (Dkt. Nos. 91-92.) On March 22, 2004, this Court found that because failure to exhaust administrative remedies is an affirmative defense in the Second Circuit, "'defendants bear the burden of showing non-exhaustion and the issue of exhaustion is generally not amenable to resolution by way of a motion to dismiss.'" Dawkins v. Jones, 03 Civ. 0068, 2004 WL 574726 at *1 (S.D.N.Y. Mar. 22, 2004) (Peck, M.J.) (quoting Foreman v. Goord, 02 Civ. 7089, 2004 WL 385114 at *6 (S.D.N.Y. Mar. 2, 2004) (internal quotations omitted)). Accordingly, the Court denied without prejudice defendants' motion to dismiss for lack of exhaustion, subject to renewal as a combined motion to dismiss and for summary judgment on the issue of exhaustion. Dawkins v. Jones, 2004 WL 574726 at *1. Defendants subsequently moved to dismiss Dawkins' second amended complaint and for summary judgement. (Dkt. Nos. 141-45, 150.)
ANALYSIS
I. DAWKINS' CLAIMS AGAINST FORTY-SEVEN OF THE DEFENDANTS SHOULD BE DISMISSED DUE TO FAILURE TO EXHAUST PRISON GRIEVANCE REMEDIES A. Exhaustion of Administrative RemediesUnder 42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1996 (" PLRA"), a prisoner must exhaust administrative remedies before bringing suit in federal court under federal law:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a). This provision requires complete exhaustion in accordance with the administrative procedures within the New York State Department of Correctional Services ("DOCS"). Exhaustion is required even when a prisoner seeks a remedy that cannot be awarded by such administrative procedures. Porter v. Nussle, 534 U.S. 516, 122 S. Ct. 983, 988 (2002); Booth v. Churner, 532 U.S. 731, 741, 121 S. Ct. 1819, 1825 (2001). The Supreme Court has made clear that there are no exceptions to the PLRA's exhaustion requirement:
See also, e.g., Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004); Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003); Beharry v. Ashcroft, 329 F.3d 51, 58 (2d Cir. 2003); Rivera v. Pataki, 01 Civ. 5179, 2003 WL 21511939 at *4, 8 (S.D.N.Y. July 1, 2003); Nelson v. Rodas, 01 Civ. 7887, 2002 WL 31075804 at *2 (S.D.N.Y. Sept. 17, 2002) (Peck, M.J.).
[W]e hold that the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.Porter v. Nussle, 534 U.S. at 532, 122 S. Ct. at 992.
Accord, e.g., Feaster v. United States Bureau of Prisons, No. 00-0118, 37 Fed. Appx. 15, 16, 2002 WL 970941 at *1 (2d Cir. May 10, 2002) (applying Porter v. Nussle holding to require exhaustion of prisoner's due process and retaliation claims); Rodney v. Goord, 00 Civ. 3724, 2003 WL 21108353 at *1, 3 (S.D.N.Y. May 15, 2003) (requiring exhaustion of claims of harassment, excessive force, and the filing of a false misbehavior report and subsequent disciplinary action); Rivera v. Goord, 253 F. Supp. 2d 735, 745-46 (S.D.N.Y. 2003); Nelson v. Rodas, 2002 WL 31075804 at *2.
"[A]lthough the exhaustion requirement of the PLRA is not jurisdictional, "a prisoner must exhaust his or her administrative remedies prior to filing a claim under § 1983."Williams v. Cohen, No. 01-0059, 101 Fed. Appx. 862, 864, 2004 WL 1462633 at *2 (2d Cir. June 30, 2004) (quoting Richardson v.Goord, 347 F.3d at 434). A plaintiff has to administratively exhaust the claim against every defendant in that claim — that is, exhaustion as to one named defendant concerning a particular incident does not constitute exhaustion as to other defendants involved in that incident. See, e.g., Venable v. Goord, 03 Civ. 4434, 2004 WL 2033069 at *3-4 (S.D.N.Y. Sep. 10, 2004); Ellis v. Guarino, 03 Civ. 6562, 2004 WL 1879834 at *7 (S.D.N.Y. Aug. 24, 2004) (Batts, D.J.); Lee v. Carson, 310 F. Supp. 2d 532, 536 (W.D.N.Y. 2004); Brewer v. Jones, 02 Civ. 3570, 2004 WL 235269 at *3 (S.D.N.Y. Feb. 5, 2004).
Accord, e.g., Ziemba v. Wezner, 366 F.3d at 163;Timmons v. Pereiro, No. 03-7190, 88 Fed. Appx. 447, 447, 2004 WL 322702 at *1 (2d Cir. Feb. 18, 2004).
Dismissal of an action for failure to comply with the PLRA is without prejudice. E.g., Morales v. Mackalm, 278 F.3d 126, 128, 131 (2d Cir. 2002) (per curiam) (Second Circuit "clarif[ies] that if a district court dismisses a prisoner's complaint for failure to exhaust administrative remedies, it should do so without prejudice.").
See also, e.g., Townsend v. Armstrong, No. 02-0175, 2003 WL 21309185 at *1 (2d Cir. June 5, 2003); De La Motte v. Menifee, No. 01-0313, 40 Fed. Appx. 639, 639, 2002 WL 1635422 at *1 (2d Cir. July 23, 2002); Stevens v. Goord, 99 Civ. 11669, 2003 WL 21396665 at *4 (S.D.N.Y. June 16, 2003);Nelson v. Rodas, 2002 WL 31075804 at *2.
DOCS has a well-established inmate grievance procedure ("IGP"):
The regular DOCS grievance procedure consists of three tiers. First, the inmate files a level 1 grievance (either on an Inmate Grievance Complaint Form, or on plain paper if the form is not readily available) with the Inmate Grievance Resolution Committee ("IGRC"), which is composed of fellow inmates and prison officials. The IGRC must convene a hearing, if necessary, within seven working days, and issue a written decision within two days of the hearing. Next, the inmate has four days to appeal the IGRC decision to the superintendent of the facility, who must respond within ten days and must provide "simple directions" on how to appeal to the next level, the Central Office Review Committee ("CORC"). The inmate's final opportunity for resolution of his grievance is to appeal to the CORC within four working days of the superintendent's decision. The CORC then has 20 working days to render a decision. 7 N.Y.C.R.R. § 701.7(c)(4).Hemphill v. New York, 380 F.3d 680, 682 (2d Cir. 2004) (fns. omitted).
See also, e.g., Rivera v. Pataki, 2003 WL 21511939 at *3; Rodney v. Goord, 2003 WL 21108353 at *4 n. 2;Nelson v. Rodas, 2002 WL 31075804 at *2; Perez v. Blot, 195 F. Supp. 2d 539, 542-43 (S.D.N.Y. 2002); Cruz v. Jordan, 80 F. Supp. 2d 109, 117-18 (S.D.N.Y. 1999); Vasquez v. Artuz, 97 Civ. 8427, 1999 WL 440631 at *5 (S.D.N.Y. June 28, 1999) (Peck, M.J.); N.Y. Correct. Law §§ 138-39; 7 N.Y.C.R.R. § 701.1,et seq.
The Second Circuit has ruled that "total exhaustion," however, is not required, i.e., if some claims are exhausted and others are not, the unexhausted claims should be dismissed while the exhausted claims can go forward. See Ortiz v. McBride, 380 F.3d 649, 651, 655-63 (2d Cir. 2004); see also, e.g., Madison v. Mazzuca, 02 Civ. 10299, 2004 WL 3037730 at *1 (S.D.N.Y. Dec. 30, 2004) ("[T]he Second Circuit has held that the presence of unexhausted claims in an inmate's § 1983 complaint does not compel dismissal of the action in its entirety.") (citing Ortiz); Degrafinreid v. Ricks, 03 Civ. 6645, 2004 WL 2793168 at *9 (S.D.N.Y. Dec. 6, 2004) ("[T]he presence of unexhausted claims in an inmate's § 1983 complaint does not compel dismissal of the action in its entirety.") (citingOrtiz); Scott v. Gardner, 344 F. Supp. 2d 421, 425 (S.D.N.Y. 2004) (same); Spitzley v. Sinha, No. 02-CV-0064, 2004 WL 2202653 at *3 n. 3 (W.D.N.Y. Sept. 28, 2004) ("[T]he presence of an unexhausted claim does not require dismissal of the action in its entirety."); Ellis v. Guarino, 03 Civ. 6562, 2004 WL 1879834 at *8 (S.D.N.Y. Aug. 24, 2004) (Batts, D.J.) (Due to the recent Ortiz ruling, "[t]his Court shall not dismiss Plaintiff's entire lawsuit simply because he has failed to exhaust the administrative remedies for his denial of medical care claim" [against one defendant.]); Foreman v. Goord, No. 02 Civ. 7089, 2004 WL 1886928 at *8-9 (S.D.N.Y. Aug. 23, 2004);Pendergrass v. Sanney, No. 01-CV-243, 2004 WL 1946458 at *2 (W.D.N.Y. Aug. 18, 2004).
Therefore, Dawkins' claims against the forty-seven defendants either unnamed in any grievance or not fully grieved should be dismissed without prejudice, as unexhausted. II. DAWKINS' CLAIMS AGAINST DEFENDANTS MAZZUCA, JONES, AND FRIEDLING RELATING TO EVENTS PRIOR TO NOVEMBER, 18, 1999 SHOULD BE DISMISSED WITH PREJUDICE AS TIME-BARRED
The statute of limitations for a § 1983 action is three years.See, e.g., Holiday v. Martinez, No. 02-7848, 2003 WL 21242641 at *2 (2d Cir. May 29, 2003) (three-year statute of limitations applies to § 1983 due process claim, which accrues when plaintiff knows or has reason to know of the injury which is the basis of his action); Warren v. Altieri, No. 02-69, 59 Fed. Appx. 426, 427, 2003 WL 1191173 at *1 (2d Cir. Mar. 13, 2003) (plaintiff's "§ 1983 action is governed by New York's three-year statute of limitations as set out in N.Y.C.P.L.R. § 214, the provision applicable to actions for personal injury.");Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002),cert. denied, 123 S.Ct. 1574 (2003); Paige v. Police Dep't, 264 F.3d 197, 199 n. 2 (2d Cir. 2001); Connolly v. McCall, 254 F.3d 36, 40-41 (2d Cir. 2001); Muhammad v. Pico, 02 Civ. 1052, 2003 WL 21792158 at *18 (S.D.N.Y. Aug. 5, 2003) (Peck, M.J.); Bristow v. Smith, 03 Civ. 2663, 2003 WL 21437005 at *1 (S.D.N.Y. June 18, 2003) (Peck, M.J.); cf. Noguera v.Hasty, 99 Civ. 8786, 2000 WL 1011563 at *12 (S.D.N.Y. July 21, 2000) (Peck, M.J.) report rec. adopted in part, 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001) (Wood, D.J.). Dawkins' initial complaint in this action is dated November 8, 2002 and was received by this Court's Pro Se Office on November 18, 2002. (Dkt. No. 2: Orig. Compl. at cover last page.) In his complaint, Dawkins' sets forth pre-November 8, 1999 claims against Mazzuca, Jones, and Friedling. (See pages 8-9 above.) Because some of the alleged acts of these individuals about which Dawkins complains took place prior to November 8, 1999, more than three years before he submitted his complaint to prison authorities on or about November 8, 2002 for submission to the Court, they are barred by the three-year limitations period. See, e.g., Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *14 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) (under the "federal 'prisoner mailbox rule,'" incarcerated pro se litigants are deemed to have filed their federal civil complaints and federal habeas petitions on the date the papers were handed to prison officials for mailing) (citing Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385 (1988)); see also, e.g., Noble v. Kelly, 246 F.3d 93, 97 (2d Cir.), cert. denied, 534 U.S. 886, 122 S. Ct. 197 (2001); Coble v.Stinson, No. 97-CV-0717, 2004 WL 1454392 at *1 n. 4 (W.D.N.Y. Jun. 23, 2004); Moreno-Castillo v. United States, 02 Civ. 2858, 2003 WL 23109747 at *1 n. 1 (S.D.N.Y. Dec. 31, 2003).
Accordingly, Dawkins' pre-November 8, 1999 claims should be dismissed with prejudice as time barred. III. SUMMARY JUDGMENT STANDARDS IN SECTION 1983 CASES
For additional decisions authored by this Judge discussing the summary judgment standards in Section 1983 cases, in language substantially similar to that in this entire section of this Report and Recommendation, see, e.g., Hall v. Perilli, 03 Civ. 4635, 2004 WL 1068045 at *3 (S.D.N.Y. May 13, 2004) (Peck, M.J.); Baker v. Welch, 03 Civ. 2267, 2003 WL 22901051 at *4-6 (S.D.N.Y. Dec. 10, 2003) (Peck, M.J.); Muhammad v. Pico, 02 Civ. 1052, 2003 WL 21792158 at *10-11 (S.D.N.Y. Aug. 5, 2003) (Peck, M.J.); Nelson v. Rodas, 01 Civ. 7887, 2002 WL 31075804 at *9-10 (S.D.N.Y. Sept. 17, 2002) (Peck, M.J.); Walker v.Pataro, 99 Civ. 4607, 2002 WL 664040 at *4-5 (S.D.N.Y. Apr. 23, 2002) (Peck, M.J.); Espinal v. Goord, 00 Civ. 2242, 2001 WL 476070 at *5-7 (S.D.N.Y. May 7, 2001) (Peck, M.J.); Fulmore v.Mamis, 00 Civ. 2831, 2001 WL 417119 at *5 (S.D.N.Y. Apr. 23, 2001) (Peck, M.J.); Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *4 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Culp v.Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *4 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *4 (S.D.N.Y. June 13, 2000) (Peck, M.J.);Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *3 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Salahuddin v.Coughlin, 999 F. Supp. 526, 534 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.); Watson v. McGinnis, 981 F. Supp. 815, 817 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.).
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v.Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986);Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S. Ct. at 2552-53.
To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356.
In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S. Ct. at 2513; see also, e.g., Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 36; Gallo v.Prudential Residential Servs., Ltd. P'ship, 22 F.3d at 1223. The Court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.
In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S. Ct. at 2510 (citations omitted); see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.
"The Court recognizes that it must 'extend extra consideration' to pro se plaintiffs" such as Dawkins and that "pro se parties are to be given special latitude on summary judgment motions."Salahuddin v. Coughlin, 999 F. Supp. at 535 (citations internal quotations omitted); see, e.g., McPherson v.Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "'to raise the strongest arguments that they suggest'"). Moreover, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. See, e.g., Irby v. New York City Transit Auth., 262 F.3d 412, 413-14 (2d Cir. 2001) ("[W]e remind the district courts of this circuit, as well as summary judgment movants, of the necessity that pro se litigants have actual notice, provided in an accessible manner, of the consequences of the pro se litigant's failure to comply with the requirements of Rule 56. . . . [E]ither the district court or the moving party is to supply the pro se litigant with notice of the requirements of Rule 56. . . . In the absence of such notice or a clear understanding by the pro se litigant of the consequences of failing to comply with Rule 56, vacatur of the summary judgment is virtually automatic.");McPherson v. Coombe, 174 F.3d at 280-81 ("'[t]he failure of a district court to apprise pro se litigants of the consequences of failing to respond to a motion for summary judgment is ordinarily grounds for reversal.'") (citations omitted). Defendants here served the appropriate notices on Dawkins. (Dkt. No. 145: Notice of Mot. for Summ. J.; Defs.' 56.2 Notice.)
See also, e.g., Commer v. American Fed'n of State, County Mun. Employees, 02 Civ. 7930, 2003 WL 21698637 at * 1 (S.D.N.Y. July 17, 2003) ("[T]he Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held to 'less stringent standards than formal pleadings drafted by lawyers. . . .'"); Douglas v. Portuondo, 232 F. Supp. 2d 106, 113 (S.D.N.Y. 2002).
See also, e.g., Trammell v. Coombe, No. 97-2622, 201 F.3d 432 (table), 1999 WL 1295856 at *2 (2d Cir. Dec. 23, 1999); Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); see generally S.D.N.Y. Local Civil Rule 56.2 (requiring service of notice explaining the requirements of Rule 56 on litigant proceeding pro se).
"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,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v.Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases); see also, e.g., Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *9 (S.D.N.Y. Aug 15, 2002) (Peck, M.J.); Smith v. Planas, 975 F. Supp. 303, 305 n. 2 (S.D.N.Y. 1997). IV. SUMMARY JUDGMENT SHOULD BE GRANTED TO DEFENDANTS SELSKY, STONE, LECLAIRE, CUNNINGHAM, MAZZUCA, AND ERCOLE DUE TO LACK OF PERSONAL INVOLVEMENT
For additional cases authored by this Judge discussing the supervisory liability standard for § 1983 claims in language substantially similar to that in this entire section of this Report and Recommendation, see Hall v. Perilli, 03 Civ. 4635, 2004 WL 1068045 at *9 (S.D.N.Y. May 13, 2004) (Peck, M.J.);Muhammad v. Pico, 02 Civ. 1052, 2003 WL 21792158 at *16 (S.D.N.Y. Aug. 5, 2003) (Peck, M.J.); Walker v. Pataro, 99 Civ. 4607, 2002 WL 664040 at *10 (S.D.N.Y. Apr. 23, 2002) (Peck, M.J.); Espinal v. Goord, 00 Civ. 2242, 2001 WL 476070 at *10 (S.D.N.Y. May 7, 2001) (Peck, M.J.); Fulmore v. Mamis, 00 Civ. 2831, 2001 WL 417119 at *8 (S.D.N.Y. Apr. 3, 2001) (Peck, M.J.) ( cases cited therein); Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *7 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Djonbalic v. City of New York, 99 Civ. 11398, 2000 WL 1146631 at *11 (S.D.N.Y., Aug 14, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *6 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Ali v. Szabo, 81 F. Supp. 2d 447, 462 (S.D.N.Y. 2000) (Pauley, D.J. Peck, M.J.).
"It is well settled in this Circuit that 'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v.Smith, 21 F.3d 496, 501 (2d Cir. 1994); accord, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003); Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995);Torres v. Mazzuca, 246 F. Supp. 2d 334, 338-39 (S.D.N.Y. 2003); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 (S.D.N.Y. 1995) (Sotomayor, D.J. Peck, M.J.) ("In order to maintain a cause of action [under § 1983] against any official, a plaintiff must show that the defendant was personally involved in the alleged deprivation of his constitutional rights, since the doctrine of respondeat superior does not apply to § 1983 actions.").
See also, e.g., Brown v. Peters, No. 97-2725, 175 F.3d 1007 (table), 1999 WL 106214 at *1 (2d Cir. Feb. 26, 1999).
"The personal involvement of a supervisory defendant 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." Colon v. Coughlin, 58 F.3d at 873.
Accord, e.g., Wright v. Smith, 21 F.3d at 501;Torres v. Mazzuca, 246 F. Supp. 2d at 339; Zamakshari v.Dvoskin, 899 F. Supp. at 1109; see also, e.g., Poe v.Leonard, 282 F.3d 123, 140 (2d Cir. 2002).
Here, Dawkins fails to show that supervisory defendants Selsky, Stone, Leclaire, Cunningham, Mazzuca, and Ercole were personally involved in his exhausted claims denying him his constitutional rights. (See pages 7-9 above.) Any instance where these supervisory defendants are named is either in a supervisory capacity only or the allegation does not amount to a constitutional deprivation. The claims against these defendants therefore should be dismissed with prejudice.
For example: Dawkins claims that Ercole "is in charge of security at Fishkill correction facility he has violated the petitioner rights by depriving petitioner" of a "treatment to a sleeping disorder condition." (Compl. ¶ 211). Dawkins claims that Cunningham never responded to his letter that he felt that some officers had a "grudge" against him. (Compl. ¶ 88). While some of these claims are simply precluded by a lack of personal involvement, others do not rise near any level of constitutional violation. See, e.g., Kee v. Hasty, 01 Civ. 2123, 2004 WL 807071 at * 27 (S.D.N.Y. Apr. 14, 2004) ("A prison officer's falsifying of a report regarding an alleged violation of an inmate's rights does not, in itself, rise to the level of a constitutional deprivation, absent a showing that the officer was personally involved in the underlying incident."); Abdus-Samad v. Greiner, 158 F. Supp. 2d 307, 315 (S.D.N.Y. 2001) (No constitutional violation where defendant "affirmed the decision of the grievance committee."); Cancel v. Goord, 00 Civ. 2042, 2001 WL 303713 at *8-9 (S.D.N.Y. Mar. 29, 2001) (Dismissing claims where "[p]laintiffs' sole claim against these three [supervisory] Defendants is that they were sent grievances and complaints by [plaintiff] which were ignored."); Higgins v.Artuz, 94 Civ. 4810, 1997 WL 466505 at *7 (S.D.N.Y. Aug. 14, 1997) (Sotomayor, D.J.) ("'[I]t is well-established that an allegation that an official ignored a prisoner's letter of protest and request for an investigation of allegations made therein is insufficient to hold that official liable for the alleged violations.'"); Neri v. Coughlin, 92 Civ. 7890, 1993 WL 464687 at *6 (S.D.N.Y. Nov. 9, 1993) (Sotomayor, D.J.) ("[A]ny administrative delays in responding to and deciding plaintiffs' challenges to the revocation [of prison visitation privileges] do not rise to the level of a due process violation because they do not implicate constitutional due process requirements.").
V. DAWKINS HAS FAILED TO ALLEGE FACTS DEMONSTRATING RETALIATION UNDER SECTION 1983, DELIBERATE INDIFFERENCE TO HIS MEDICAL NEEDS, OR ANY DENIAL OF HIS CONSTITIONAL RIGHTS
To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law.See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55 (1988). "Section 1983 itself," however, "creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240, 114 S. Ct. 2749 (1994).
A. Legal Standard Governing a § 1983 Retaliation Claim
For an additional decision authored by this Judge discussing the plaintiff's burden of proof for a § 1983 retaliation claim in language substantially similar to that in this entire section of this Report and Recommendation, see Walker v. Pataro, 99 Civ. 4607, 2002 WL 664040 at *8 (S.D.N.Y. Apr. 23, 2002) (Peck, M.J.).
The Second Circuit has clearly set forth a plaintiff's burden of proof in proving a § 1983 retaliation claim, as follows:
The plaintiff bears the burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison officials' decision to discipline the plaintiff. If the plaintiff carries that 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." Thus, if taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone.Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citations omitted).
See, e.g., Bennett v. Goord, 343 F.3d 133, 137 (2d. Cir. 2003); Ebron v. CTO Huria, No. 99-0087, 205 F.3d 1322 (table), 2000 WL 241576 at *1 (2d Cir. Feb. 1, 2000);Davidson v. Chestnut, 193 F.3d 144, 148-49 (2d Cir. 1999);Duamutef v. Hollins, No. 97-2692, 159 F.3d 1346 (table), 1998 WL 537838 at *1 (2d Cir. July 7, 1998); Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir.), cert. denied, 525 U.S. 907, 119 S. Ct. 246 (1998); Davidson v. Kelly, No. 96-2066, 131 F.3d 130 (table), 1997 WL 738109 at *3 (2d Cir. Nov. 24, 1997); Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994); Sher v.Coughlin, 739 F.2d 77, 82 (2d Cir. 1984); see also, e.g., Walker v. Keyser, 98 Civ. 5217, 2001 WL 1160588 at *6 (S.D.N.Y. Oct. 2, 2001); Williams v. Muller, 98 Civ. 5294, 2001 WL 936297 at *3 (S.D.N.Y. Aug. 17, 2001); Jackson v.Johnson, 15 F. Supp. 2d 341, 363-64 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Campbell v. Kuhlmann, 91 Civ. 6766, 1998 WL 249196 at *4 (S.D.N.Y. May 15, 1998).
A number of factors can be considered in determining whether a causal connection exists between the plaintiff's protected activity and the prison official's actions, including "any statements made by the defendant concerning his motivation" and "the temporal proximity between the protected activity and the defendant's adverse action." Williams v. Muller, 2001 WL 936297 at *3 (citing Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir. 1995)); see, e.g., Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002); Gill v. Jones, 95 Civ. 9031, 2001 WL 1346012 at *6 (S.D.N.Y. Nov. 1, 2001); Walker v. Keyser, 2001 WL 1160588 at *6; Rivera v. Goord, 119 F. Supp. 2d 327, 339 (S.D.N.Y. 2000).
"While . . . the scope of conduct that can constitute actionable retaliation in the prison setting is broad, it is not true that every response to a prisoner's exercise of a constitutional right gives rise to a retaliation claim. 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. Otherwise, the retaliatory act is simply de minimis, and therefore outside the ambit of constitutional protection." Dawes v. Walker, 239 F.3d 489, 492-93 (2d Cir. 2001) (citations omitted); accord, e.g., Morales v.Mackalm, 278 F.3d at 131; Davidson v. Chestnut, 193 F.3d 144, 150 (2d Cir. 1999); Thaddeus-X v. Blatter, 175 F.3d 378, 396-98 (6th Cir. 1999) (to be actionable, retaliation against a prisoner must be likely to "chill a person of ordinary firmness from continuing to engage" in activity protected by the First Amendment); Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996) (en banc), rev'd on other grounds, 523 U.S. 574, 118 S. Ct. 1584 (1998).
See also, e.g., Walker v. Keyser, 2001 WL 1160588 at *6; Wagnoon v. Gatson, 00 Civ. 3722 99 Civ. 5872, 2001 WL 709276 at *6 (S.D.N.Y. June 25, 2001); Rivera v. Goord, 119 F. Supp. 2d at 340.
Prisoners' claims of retaliation, of course, must be examined with skepticism and particular care because they are "'prone to abuse' since prisoners can claim retaliation for every decision they dislike." Graham v. Henderson, 89 F.3d at 79 (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)); accord, e.g., Dawes v. Walker, 239 F.3d at 491;Colon v. Coughlin 58 F.3d at 872; Jackson v. Johnson, 15 F. Supp. 2d at 364 ( cases cited therein).
1. Application to Dawkins' Retaliation Allegations
Throughout Dawkins' amended complaint, he asserts that defendants retaliated against him after he filed grievances and wrote letters complaining about his confinement and treatment. (See Compl. ¶¶ 1, 22, 42, 47, 49, 65, 71, 76, 83, 91, 105, 126, 131, 181, 223, 224, 229, 230, 234, 251, 264, 281, 293, 303, 305, 313, 317, 332, 335, 340; see also pages 4-13 above.) However, with the exception of the medical related claims discussed below, Daskins has failed to allege any retaliatory acts sufficiently serious to rise to a constitutional violation, i.e., acts that would deter a prisoner of ordinary firmness from exercising his constitutional rights. (Indeed, Dawkins obviously was not deterred — he was known as the "grievance King." (See page 12 above.) Dawkins' (non-medical) retaliation claims should be dismissed. B. Applicable Law Regarding Claims of Deliberate Indifference to Serious Medical Needs
For additional cases authored by this Judge discussing the governing standard in medical indifference claims, in language substantially similar to that in this entire section of this Report and Recommendation, see Hall v. Perilli, 03 Civ. 4635, 2004 WL 1068045 at *4-7 (S.D.N.Y. May 13, 2004) (Peck, M.J.); Nelson v. Rodas, 01 Civ. 7887, 2002 WL 31075804 at *10-13 (S.D.N.Y. Sept. 17, 2002) (Peck, M.J.); Espinal v.Goord, 00 Civ. 2242, 2001 WL 476070 at *7-10 (S.D.N.Y. May 7, 2001) (Peck, M.J.); Fulmore v. Mamis, 00 Civ. 2831, 2001 WL 417119 at *7-8 (S.D.N.Y. Apr. 23, 2001) (Peck, M.J.); Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *5-6 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *6-7 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *5-6 (S.D.N.Y. June 13, 2000) (Peck, M.J.).
The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials and conduct that offends "evolving standards of decency." E.g., Hudson v. McMillan, 503 U.S. 1, 5, 8, 112 S. Ct. 995, 998, 1000 (1992); Wilson v.Seiter, 501 U.S. 294, 297, 308, 111 S. Ct. 2321, 2323, 2329 (1991); Estelle v. Gamble, 429 U.S. 97, 102, 104-05, 97 S. Ct. 285, 290, 291 (1976); Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925 (1976).
To establish an Eighth Amendment violation based on a claim that a prison official has placed an inmate's health in danger, the inmate must show that the prison official acted with "deliberate indifference" to the inmate's serious medical needs.E.g., Helling v. McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 2480 (1993); Estelle v. Gamble, 429 U.S. at 104-05, 97 S. Ct. at 291.
See also, e.g., Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir. 2003); Selby v. Coombe, No. 00-172, 17 Fed. Appx. 36 (table), 2001 WL 964195 at *1 (2d Cir. Aug. 20, 2001) (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)); Perkins v. Obey, 00 Civ. 1691, 2004 WL 238036 at *8 (S.D.N.Y. Feb. 10, 2004).
As the Second Circuit has explained, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1994), cert. denied, 513 U.S. 1154, 115 S. Ct. 1108 (1995). "Objectively, the alleged deprivation must be 'sufficiently serious.'" Hathaway v. Coughlin, 99 F.3d at 553; see also, e.g., Hudson v. McMillian, 503 U.S. at 9, 112 S. Ct. at 1000 ("Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are 'serious'"); Smith v.Carpenter, 316 F.3d at 183-84 ("The objective "medical need' element measures the severity of the alleged deprivation . . .");Selby v. Coombe, 2001 WL 964195 at *1; Chance v.Armstrong, 143 F.3d at 702; Lumaj v. Williams, 03 Civ. 1849, 2004 WL 1207894 at *4 (S.D.N.Y. June 2, 2004); Torres v.Mazzuca, 246 F. Supp. 2d 334, 339 (S.D.N.Y. 2003). "'The Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves. . . .'" Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). "[O]nly those deprivations denying 'the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson v.Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 2324 (1991) (citation omitted); see also, e.g., Dean v. Coughlin, 804 F.2d at 215 ("'[T]he essential test is one of medical necessity and not one simply of desirability.'"). Thus, Eighth Amendment protection is limited to "'a condition of urgency' that may result in 'degeneration' or 'extreme pain.'" Chance v. Armstrong, 143 F.3d at 702; accord, e.g., Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002);Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) ("A serious medical condition exists where 'the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'").
Accord, e.g., Smith v. Carpenter, 316 F.3d at 183;Selby v. Coombe, 2001 WL 964195 at *1; Chance v.Armstrong, 143 F.3d at 702.
The Second Circuit in Chance v. Armstrong identified several factors that are relevant in determining whether a serious medical condition exists, including "'[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.'" 143 F. 3d at 702.
"Subjectively, the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d at 553; accord, e.g., Smith v. Carpenter, 316 F.3d at 184 ("[T]he subjective 'deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind."); Selby v. Coombe, 2001 WL 964195 at *1; Chance v. Armstrong, 143 F.3d at 702. "The required state of mind, equivalent to criminal recklessness, is that 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."'"Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 99 F.3d at 553 (quotingFarmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994))).
See also, e.g., Smith v. Carpenter, 316 F.3d at 184; Selby v. Coombe, 2001 WL 964195 at *1; Chance v.Armstrong, 143 F.3d at 702; LaBounty v. Coughlin, 137 F.3d 68, 72-73 (2d Cir. 1998) ("To succeed in showing deliberate indifference, [plaintiff] must show that the acts of defendants involved more than lack of due care, but rather involved obduracy and wantonness in placing his health in danger."); Lumaj v.Williams, 2004 WL 1207894 at *5.
Deliberate indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care." Estelle v. Gamble, 429 U.S. at 104-05, 97 S. Ct. at 291 (fn. omitted); accord, e.g., Kaminsky v. Rosenblum, 929 F.2d 922, 926 (2d Cir. 1991) ("Cruel and unusual punishment may consist of prison officials delaying an inmate access to needed medical care."). However, an "inadvertent failure to provide adequate medical care" does not constitute "deliberate indifference." Estelle v. Gamble, 429 U.S. at 105-06, 97 S. Ct. at 292; accord, e.g., Burton v. New York State Dep't of Corrections, 93 Civ. 6028, 1994 WL 97164 at *2 (S.D.N.Y. March 2, 1994) (Sotomayor, D.J.). "Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim . . . under the Eighth Amendment." Estelle v. Gamble, 429 U.S. at 106, 97 S. Ct. at 292. As the Supreme Court has stated, "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. at 106, 97 S. Ct. at 292; accord, e.g., Smith v.Carpenter, 316 F.3d a 184 ("Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation.");Hathaway v. Coughlin, 99 F.3d at 553; Burton v. New York State Dep't of Corrections, 1994 WL 97164 at *2. An act of malpractice will amount to deliberate indifference only if "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 v.Armstrong, 143 F.3d at 703 (quoting Hathaway v. Coughlin, 99 F.3d at 553); Harrison v. Barkley, 219 F.3d at 139 ("We agree that the mere malpractice of medicine in prison does not amount to an Eighth Amendment violation. . . . This principle may cover a delay in treatment based on a bad diagnosis or erroneous calculus of risks and costs, or a mistaken decision not to treat based on an erroneous view that the condition is benign or trivial or hopeless, or that treatment is unreliable, or that the cure is as risky or painful or bad as the malady. . . . [But] [c]onsciously disregarding an inmate's legitimate medical needs is not 'mere medical malpractice.'"); Hathaway v. Coughlin, 37 F.3d at 66 ("Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm.").
See, e.g., Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir. 1994) (delay for more than two years in removing broken pins from prisoner's hip despite nearly fifty complaints of pain), cert. denied, 513 U.S. 1154, 115 S. Ct. 1108 (1995);Liscio v. Warren, 901 F.2d 274, 277 (2d Cir. 1990) (failure to provide medical attention to a delirious inmate for three days); Archer v. Dutcher, 733 F.2d 14, 15-17 (2d Cir. 1984) (denying summary judgment where plaintiff "identifie[d] intentional efforts on the part of defendants to delay her access to medical care at a time [when] she was in extreme pain");Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974).
Accord, e.g., Hathaway v. Coughlin, 99 F.3d at 553; Felipe v. New York State Dep't of Correctional Servs., No. 95-CV-1735, 1998 WL 178803 at *3 (N.D.N.Y. Apr. 10, 1998) (Pooler, D.J.).
"It is well-established that mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Chance v. Armstrong, 143 F.3d at 703;accord, e.g., Hathaway v. Coughlin, 37 F.3d at 70 (Jacobs, C.J., dissenting) ("'We do not sit as a medical board of review. Where the dispute concerns not the absence of help, but the choice of a certain course of treatment, or evidences mere disagreement with considered medical judgment, we will not second guess the doctors.'"); Culp v. Koenigsmann, 2000 WL 995495 at *7 ("Mere disagreements with the quality of medical care, however, do not state an Eighth Amendment claim."); see also, e.g., Troy v. Kuhlmann, 96 Civ. 7190, 1999 WL 825622 at *6 (S.D.N.Y. Oct. 15, 1999) ("a prisoner's disagreement with the diagnostic techniques or forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim"); Brown v. Selwin, 98 Civ. 3008, 1999 WL 756404 at *6 (S.D.N.Y. Sept. 24, 1999) (citing cases), aff'd, No. 01-0144, 29 Fed. Appx. 762, 2002 WL 355901 (2d Cir. Mar. 6, 2002); Negron v. Macomber, 95 Civ. 4151, 1999 WL 608777 at *6 (S.D.N.Y. Aug. 11, 1999); Espinal v.Coughlin, 98 Civ. 2579, 1999 WL 387435 at *3 (S.D.N.Y. June 14, 1999).
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, this Court has reserved such a classification 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. No such circumstances are present here. At no point was [plaintiff's] condition "fast-degenerating" or "life-threatening," and there is no indication that [defendant] delayed treatment in order to punish him. Moreover, any delay in treatment in this case does not rise to the egregious level identified in Hathaway. That [plaintiff] feels something more should have been done to treat his injuries is not a sufficient basis for a deliberate indifference claim.Demata v. New York State Correctional Dep't of Health Servs., No. 99-0066, 198 F. 3d 233 (table), 1999 WL 753142 at *2 (2d Cir. Sept. 17, 1999) (citations omitted) (summary judgment for defendants where plaintiff complained of knee injury in February 1994 and surgery not performed until March 1997); accord, e.g., Smith v. Carpenter, 316 F.3d at 185 ("When the basis for a prisoner's Eighth Amendment claim is a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment rather than the person's underlying medical condition alone in analyzing whether the alleged deprivation is, in 'objective terms, sufficiently serious,' to support an Eighth Amendment claim.") (emphasis in original);Freeman v. Strack, 2000 WL 1459782 at *9 (no Eighth Amendment claim against nurse who scheduled inmate with appendicitis requiring appendectomy for appointment two hours later rather than seeing inmate immediately where "[t]here was nothing in [the inmate]'s medical history which would have put [the nurse] on notice that [plaintiff] was suffering from the onset of appendicitis . . . and there is no evidence that [the officer] gave [the nurse] any reason to believe that there was an emergency on hand"); Culp v. Koenigsmann, 2000 WL 995495 at *7-8 (rejecting claim based on fact that one doctor recommended arthroscopic surgery for knee injury in April 1999, while another doctor concluded that surgery was not warranted until more conservative measures like physical therapy had been tried and failed).
"Just as the relevant 'medical need' can only be identified in relation to the specific factual context of each case, the severity of the alleged denial of medical care should be analyzed with regard to all relevant facts and circumstances. The absence of adverse medical effects or demonstrable physical injury is one such factor that may be used to gauge the severity of the medical need at issue. Indeed, in most cases the actual medical consequences that flow from the alleged denial of care will be highly relevant to the question of whether the denial of treatment subjected the prisoner to a significant risk of serious harm." Smith v. Carpenter, 316 F.3d at 187 (citations omitted).
1. Application of the Legal Standard to Dawkins' Various Medical Claims
Dawkins asserts medical and quasi-medical related claims against six of the remaining defendants. (See pages 5-6 above.) None of these claims support a finding of deliberate medical indifference. Dawkins asserts that: (1) Nurse Pecenco waited too long before examining him; (2) Dawkins disagreed with Dr. Supple's medical decisions, and Dr. Supple delayed medical treatment or denied him medical treatment and ignored a request for extra mattresses and large handcuffs; (3) Nurse Faoro did not write down his full medical history upon admission to the S.H.U.; (4) Dr. Klyszejko waited too long to take his vital signs and rescheduled a medical visit; (5) Sgt. Larson, a non-medical staff member, made Dawkins go to a hearing instead of physical therapy; and (6) Sgt. Conklin, a non-medical staff member, notified another defendant about Dawkin's sleep disorder. (See page 7 above.)
The "claim" against Conklin is nothing more than a statement of fact and should be dismissed without further discussion. (It is not mentioned in a context indicating an invasion of an inmate's medical privacy, which would be another story.) The only reason it is listed among the other claims is because it is the only time that Conklin is mentioned outside the complaint caption. See, e.g., McCoy v. Goord, 255 F. Supp. 2d 233, 258 (S.D.N.Y. Mar. 25, 2003) ("It is well-settled that where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted.") (quotation marks omitted).
Dawkins has failed to make a showing of any deliberate indifference to his serious medical needs. In fact, the only potentially "serious" medical need he discussed was a sleep disorder, for which he apparently had been given equipment and a sizeable amount of the prison's medical time and resources. Any any failure to act in a timely manner or manner of Dawkins' liking in regard to his sleep disorder is not disregarding a serious medical condition. Dawkins' other various medical claims do not rise to an Eighth Amendment violation.See, e.g., Mowry v. Noone, 02-CV-6257, 2004 WL 2202645 at *4 (W.D.N.Y. Sept. 30, 2004) ("[T]he denial of medical treatment must concern an objectively serious injury. A serious injury has been defined as one that may produce death, degeneration or extreme pain.") (citations quotation marks omitted); Davis v.Reilly, 324 F. Supp. 2d 361, 368 (E.D.N.Y. 2004) ("The plaintiff's injuries, namely a sprained back and neck coupled with pain in the left testicle, do not constitute a serious medical condition."); Rodriguez v. Mercado, 00 Civ. 8588, 2002 WL 1997885 at *8-9 (S.D.N.Y. Aug. 28, 2002) (Plaintiff "has not adduced any evidence to suggest that any of his injuries . . . were so urgent or life-threatening that they required immediate care. Courts in this circuit often have found no serious medical need in cases in which the injury of was similar to — or even more serious than — the injuries alleged by [plaintiff]. . . . [Plaintiff] has not alleged that his injuries were 'life-threatening' or 'fast-degenerating,' or that he was experiencing extreme pain that more rapid treatment would have alleviated."); Espinal v.Coughlin, 98 Civ. 2579, 1999 WL 387435 at *5 (S.D.N.Y. June 14, 1999) (Correction officer carrying out an order to place prisoner in third floor cell when prisoner was afraid of walking up and down the stair due to a knee instability "fails to demonstrate intentional or reckless indifference to plaintiff's medical condition and does not constitute a violation of 42 U.S.C. § 1983.").
Sleep apnea has been found by other courts to be a serious and potentially life threatening disorder. See, e.g., Meloy v. Schuetzle, No. 99-2122, 230 F.3d 1363 (table), 2000 WL 1160446 at *1 (8th Cir. Aug. 17, 2000); Silk v. City of Chicago, 194 F.3d 788, 795 (7th Cir. 1999); Howard v. Goord, No. 98-CV-7471, 2001 WL 739244 at *2 (E.D.N.Y. Jun. 6, 2001).
Furthermore, Dawkins has not alleged that any medical personnel acted with a culpable state of mind. (See pages 5-6 above.) While deliberate indifference may be manifested by an intentional denial or delay in medical care (see pages 31-32 above), Dawkins has not alleged any such intentional denial or delay.See, e.g., Baskerville v. Blot, 224 F. Supp. 2d 723, 735 (S.D.N.Y. 2002) (Nurse did not act constitutionally indifferent to prisoner's medical needs when she waited several days to refill his high blood pressure medication because he "fail[ed] to allege facts sufficient to satisfy the subjective component;i.e., that [the nurse] acted 'with the requisite culpable mental state.' . . . Plaintiff's allegations fail to establish that she knowingly and intentionally provided inadequate medical treatment or that she knew of and disregarded a substantial risk of serious harm to him."); Brown v. City of New York, No. 98-CV-5354, 2001 WL 477279 at *8 (E.D.N.Y. Feb. 15, 2001) (Although prisoner was "undeniably injured and bleeding from his forehead," he lacked evidence of deliberate indifference because he failed to show that his "condition was permitted to degenerate to a life threatening level. That [prisoner] feels something more should have been done to treat his injuries is not a sufficient basis for a deliberate indifference claim.");Espinal v. Coughlin, 1999 WL 387435 at *4 (Doctor who diagnosed and treated prisoner's knee pain as asserted in complaint did not act with deliberate indifference to his medical needs.); Keyes v. Strack, 95 Civ. 2367, 1997 WL 187368 at *4 (S.D.N.Y. Apr. 16, 1997) ("The record shows that defendants were not deliberately indifferent to [plaintiff's] medical needs. The Fishkill medical staff made continual efforts to treat and care for plaintiff," with thirty visits to the facility's clinic over an eleven month period.); Vondette v. McDonald, 00 Civ. 6874, 2001 WL 1551152 at *5 (S.D.N.Y. Dec. 5, 2001) (Defendants granted summary judgment in Bivens; "Plaintiff offers no evidence beyond his own conclusory allegations to show that defendants acted with deliberate indifference to his medical needs."). Finally, as discussed on page 33 above, mere disagreement over treatment does not create a constitutional claim. Because Dawkins has failed to adequately plead any constitutional deliberate indifference to his medical needs in any way, his medical indifference sounding claims should be dismissed.
C. Analysis of Dawkins' Other Section 1983 Claims
In addition to his claims discussed above, Dawkins makes other factual assertions against certain defendants: allegations that certain prison staff either improperly handled, destroyed, or retained Dawkins' property (see pages 4-5 above), and allegations that defendants found Dawkins guilty during disciplinary hearings (see pages 2-9 above). None of these claims rise to a Section 1983 violation.
While Dawkins' amended complaint does not expressly reference the Due Process Clause, his allegations, construed liberally, claim a denial of due process in his disciplinary hearings. Before paragraph one of his amended complaint, Dawkins states that he lists violations of the First, Sixth, Eighth, and Fourteenth Amendments.
Dawkins' property claims are barred. "Deprivation of property by a state actor, whether intentional or negligent, does not give rise to a claim under § 1983 so long as the law of that state provides for an adequate post-deprivation remedy and the deprivation was the result of a 'random and unauthorized' act."Dove v. City of New York, 99 Civ. 3020, 2000 WL 342682 at *2 (S.D.N.Y. Mar. 30, 2000) (quoting Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990)); see also, e.g., David v.N.Y.P.D. 42nd Precinct Warrant Squad, 02 Civ. 2581, 2004 WL 1878777 at *5 (S.D.N.Y. Aug. 23, 2004); Aziz Zarif Shabazz v.Pico, 994 F. Supp. 460, 473-74 (S.D.N.Y. 1998) (Sotomayor, D.J.); Smith v. O'Connor, 901 F. Supp. 644, 647-48 (S.D.N.Y. 1995) (Sotomayor, D.J.). Dawkins' failure to file suit in a New York Court of Claims does not convert a personal property cause of action into a constitutional violation. See Franco v.Kelly, 854 F.2d 584, 588 (2d Cir. 1988) ("As we noted inMorello, Parratt continues, even after Daniels v.Williams, to stand for the proposition that 'section 1983 [can]not be made a vehicle for transforming mere civil tort injuries into constitutional injuries.'") (quoting Morello v.James, 810 F.2d 344, 347 (2d Cir. 1987)). Because Dawkins had an adequate state remedy to vindicate any alleged property loss, his property claims should be denied. See, e.g., Dove v.City of New York, 2000 WL 342682 at *3 ("Because New York provides an adequate post-deprivation remedy in the form of state law causes of action for negligence, replevin, or conversion, [inmate plaintiff's] § 1983 claim for the loss of his property is dismissed.").
Most of the defendants against whom Dawkins asserts disciplinary due process claims are no longer in the case due to lack of personal involvement. (See Point IV above.) Even so, Dawkins has failed to assert any facts which would constitute a disciplinary due process claim under Sandin v. Connor, 515 U.S. 472, 115 S. Ct. 2293 (1995). As such, his disciplinary claims should be dismissed.
Dawkins' due process claims fall so far short of a constitutional violation that it is unnecessary to address them further. For an overview of Sandlin as applied to prisoner disciplinary due process claims, see Muhammad v. Pico, 02 Civ. 1052, 2003 WL 21792158 at *13 (S.D.N.Y. Aug. 5, 2003) (Peck, M.J.).
VI. LEAVE TO REPLEAD IS GRANTED
Despite the length of his complaint, Dawkins states only facts, not legal claims. That has made review of defendants' motion to dismiss more difficult. It is possible that Dawkins can adequately re-plead claims against certain of the defendants against whom he has exhausted grievance remedies. Accordingly, the Court gives Dawkins thirty days from this Report and Recommendation to file a Third Amended Complaint, consistent with this Report and Recommendation, and only against defendants who this Report and Recommendation finds have been grieved against. Any such Third Amended Complaint must comply with Fed.R.Civ.P. 8, and must include "a short and plain statement of the claim showing that the pleader [i.e., Dawkins] is entitled to relief." Fed.R.Civ.P. 8(a). It will not suffice for Dawkins merely to repeat the lengthy factual assertions in his present complaint, without identifying specific legal claims against each defendant, nor assert claims in purely conclusory language.See, e.g., Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795-96 (2d Cir. 1999) ("'[A] pro se complaint is to be read liberally. Certainly the court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.'") (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)); Liner v. Keane, 98 Civ. 1207, 1999 WL 182592 at *2 (S.D.N.Y. Mar. 31, 1999) ("[B]ecause the chief problem with the complaint is a failure to provide factual details where only general allegations of wrongdoing have been alleged, it is appropriate, particularly because plaintiff proceeds pro se, to give plaintiff an opportunity to correct the deficiencies in his complaint.").
CONCLUSION
For the reasons stated above, defendant's motion to dismiss and for summary judgment (Dkt. No. 141) should be GRANTED. Dawkins' complaint should be dismissed without prejudice as to defendants against whom he had not exhausted prison remedies, and dismissed with prejudice against the remaining defendants, unless Dawkins files a Third Amended Complaint, consistent with this Report and Recommendation, within thirty days hereof.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, 500 Pearl Street, Room 2510, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Batts. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).