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holding that temporary deprivation of the right to use the toilet did not rise to the level of an Eighth Amendment violation because there was no "serious physical harm"
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Civ. No. 9:03-CV-1456 (NAM/RFT).
March 31, 2005.
ANTHONY G. GILL, Livingston Correctional Facility, Sonyea, New York, Plaintiff, Pro se.
HON. ELIOT SPITZER, LISA ULLMAN, ESQ., Assistant Attorney General, The Capitol Litigation Bureau, Albany, New York, Attorney General of the State of New York Attorney for Defendants.
REPORT-RECOMMENDATION and ORDER
Plaintiff Anthony Gill brings this pro se action, pursuant to 42 U.S.C. § 1983, alleging the Defendants violated his civil rights. Dkt. No. 5, Am. Compl. In his Amended Complaint, Gill alleges eight causes of action: (1) Defendant Riddick, Senior Correction Counselor at Mohawk Correctional Facility (Mohawk), filed a false misbehavior report against Plaintiff in retaliation for Gill exercising a First Amendment right; (2) Defendant T. Brown, Sergeant (Sgt.) at Mohawk, filed a false misbehavior report against Plaintiff in retaliation for Gill exercising a First Amendment right; (3) Defendant K. Adamik, Lieutenant (Lt.) at Mohawk, denied Gill his due process rights at a Tier II Disciplinary Hearing; (4) Defendant J. Rosado, Deputy Superintendent of Health at Mohawk, acted in concert with Defendants Riddick, Brown, and Adamik; (5) Defendant D. Malloni, Correction Officer (C.O.) at Mohawk, intentionally destroyed and/or tampered with Plaintiff's legal mail; (6) Defendant Kenneth Perlman, Supervising Superintendent of Mohawk, failed to render a decision on Gill's appeal of his Tier II Hearing disposition; (7) Defendants Cacciotti and G. Watson, C.O.s at Mohawk, subjected Gill to cruel and unusual punishment when, while en route to another facility, they denied Gill the opportunity to use the bathroom causing Plaintiff to urinate on himself, which was responded to with further taunting and humiliation; and (8) Defendant Kailash Saxena, Clinical Physician II, M.D., at Walsh Regional Medical Unit (Walsh or RMU), acted in concert with Defendants Adamik and Riddick and transferred Gill to another facility in retaliation for his exercise of a First Amendment right and to cover up the constitutional violations of the other Defendants.
Defendants filed a Motion to Dismiss, pursuant to FED. R. CIV. P. 12(b)(6), on the ground that Plaintiff's Amended Complaint fails to state a cause of action. Dkt. Nos. 20 (Motion) 28 (Reply). Plaintiff opposes the Motion. Dkt. No. 23. For the reasons explained below, it is recommended that Defendants' Motion be granted in part and denied in part.
This matter was referred to the undersigned for a report-recommendation pursuant 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c).
I. MOTION TO DISMISS STANDARD
On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). "Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents attached to the complaint, and matters to which the court may take judicial notice." Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997). On a motion to dismiss, the trial court's function "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). "[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. See Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.; see also Wheeldin v. Wheeler, 373 U.S. 647, 648 (1963) (inferring facts from allegations of complaint). In construing the complaint favorably to the pleader, the court may not dismiss the complaint for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Scheuer v. Rhodes, 416 U.S. at 236; Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994). In spite of the deference the court is bound to give to the plaintiff's allegations, however, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged." Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
The Plaintiff herein is proceeding with this action pro se. "[A] pro se complaint, 'however inartfully pleaded,' must be held to 'less stringent standards than formal pleadings drafted by lawyers' and can only be dismissed for failure to state a claim if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citing, inter alia, Haines v. Kerner, 404 U.S. 519, 520-21) (other internal citations and quotation marks omitted). However, the Second Circuit has stated that there are circumstances where an overly litigious inmate, "who is quite familiar with the legal system and with pleading requirements," may not be afforded such special solicitude. Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994) (declining to afford an "extremely litigious inmate" the benefit of lenient treatment normally afforded pro se litigants and thus denying the opportunity to amend a claim where he failed to properly plead a cause of action); see also Davidson v. Dean, 204 F.R.D. 251, 257 (S.D.N.Y. 2001) (citing Second Circuit opinion in Davidson v. Flynn, 32 F.3d at 31, and refusing to accord deference to same plaintiff); Santiago v. C.O. Campisi Shield No. 4592, 91 F. Supp. 2d 665, 670 (S.D.N.Y. 2000) (applying Davidson to pro se plaintiff who had ten suits pending in district); Brown v. McClellan, 1996 WL 328209, at *1 n. 3 (W.D.N.Y. Jun. 11, 1996) (stating that plaintiff's "litigious nature," notwithstanding his pro se status, "weighs somewhat against the leniency that is normally accorded"); Brown v. Selsky, 1995 WL 13263, at *8 n. 1 (W.D.N.Y. Jan. 10, 1995) (denying special solicitude to pro se plaintiff who had seven cases pending in district). As the Second Circuit has noted, Anthony Gill, the Plaintiff herein is no stranger to the courts. See Gill v. Pidlypchak 389 F.3d 379, 384 (2d Cir. 2004) (noting that the plaintiff therein, Anthony G. Gill, "is no stranger either to the grievance system or to the federal courts"). In light of Gill's experience in federal court, we find that the special solicitude afforded pro se litigants shall not be accorded herein.
Gill has filed twenty (20) lawsuits in this district alone:
(1) Gill v. LeFevre, 85-cv-1534 (HGM/RWS) (closed on Jan. 17, 1992 — failure to prosecute);
(2) Gill v. Padilla, 88-cv-147 (NPM/RWS) (closed on Mar. 26, 1992 — failure to prosecute);
(3) Gill v. Burch, 94-cv-369 (FJS/DNH) (closed on Apr. 1, 1999 — Defts.' Mot. for Summ. J. granted);
(4) Gill v. Kramer, 98-cv-45 (FJS/GJD) (closed on Sept. 27, 1999 — Stip. of Discont.);
(5) Gill v. Anderson, 98-cv-1472 (LEK/GLS) (closed on Mar. 3, 2003 — Defts.' Mot. for Summ. J. granted);
(6) Gill v. Gummerson, 99-cv-761 (NAM/DEP) (closed on Aug. 20, 2003 — Jury Verdict for Defts.);
(7) Gill v. Dann, 00-cv-566 (NAM/RFT) (closed on Nov. 20, 2001 — failure to prosecute);
(8) Gill v. Tuttle, 00-cv-585 (DNH/DRH) (currently stayed);
(9) Gill v. Doe, 00-cv-983 (GLS/DEP) (closed on June 8, 2004 — Defts.' Mot. for Summ. J. granted);
(10) Gill v. Calescibetta, 00-cv-1553 (LEK/DEP) (closed on Aug. 5, 2004 — frivolous action);
(11) Gill v. McGinnis, 00-cv-1787 (LEK/RWS) ( habeas corpus petition transferred to S.D.N.Y. on Dec. 19, 2000);
(12) Gill v. Smith, 00-cv-1905 (FJS/GJD) (currently pending, trial date to be set);
(13) Gill v. Butero, 01-cv-82 (LEK/DRH) (closed on Apr. 30, 2003 — Defts.' Mot. to Dismiss granted at trial);
(14) Gill v. Hoadley, 01-cv-323 (FJS/DEP) (currently pending);
(15) Gill v. Steinberg, 02-cv-82 (DNH/DEP) (closed on Feb. 19, 2004 — Stip. of Discont.);
(16) Gill v. Pflueger, 02-cv-130 (DNH/GJD) (closed on Jan. 30, 2003 — Defts.' Mot. to Dismiss granted);
(17) Gill v. Coyne, 02-cv-1380 (TJM/GHL) (currently pending);
(18) Gill v. Pidlypchak, 02-cv-1460 (JMH/RFT) (currently pending);
(19) Gill v. Erickson, 02-cv-1573 (LEK/RFT) (transferred to S.D.N.Y. on Jan. 21, 2003);
(20) Gill v. Riddick, 03-cv-1456 (NAM/RFT) (currently pending).
In light of Gill's litigious track record, as stated above, and the Second Circuit's explicit recognition that Gill has stepped into that rare status for inmate litigants as being deemed not entitled to "special solicitude," we place both parties on notice that FED. R. CIV. P. 11 sanctions may be applicable, when warranted, for any future litigation pursued by Gill. However, Rule 11 sanctions will not be considered for this case.
II. BACKGROUND
The following facts are derived from the Amended Complaint, which on a motion to dismiss this Court must construe as an accurate depiction of what took place. Due to the complexity of the facts involved and the numerous Defendants and claims asserted, the Court shall recite the relevant factual averments, set forth in the Amended Complaint, as it pertains to Gill's separate claims. As a general statement relevant to all claims, the Court notes that on or about June 10, 2002, Gill was transferred from Elmira Correctional Facility to the Walsh Regional Medical Unit (Walsh or RMU). Dkt. No. 5, Am. Compl. at ¶ 1. Gill believed that this transfer was due to his chronic asthmatic medical condition. Id. Upon admission to Walsh, Gill was housed in the general population medical unit, C-wing, room C2B3-03, and was informed by Defendant Saxena that he was indeed transferred to Walsh due to his asthma condition and would remain there until his scheduled parole board appearance in July 2003. Id. at ¶ 2.Retaliation Claims Against Defendants Riddick, Brown, and Rosado — First, Second, and Fourth Causes of Action
Walsh RMU has a "Problem Solving Committee" chaired by prison officials and inmate representatives from each living unit. Am. Compl. at ¶ 3, Ex. A, Vander Bosch Aff. at ¶ 3. The inmate representatives are selected by patient/residents of the respective living units, i.e., A-wing, C-wing. Id. The C-wing at Walsh is divided into two separate living units, C-1 and C-2. Vander Bosch Aff. at ¶ 4. In the past, C-wing was permitted two inmate/patient representatives, one from the C-1 and one from C-2 living areas, to represent the C-wing before the Problem Solving Committee. Am. Compl. at ¶ 3; Vander Bosch Aff. at ¶ 5. At the time Gill was transferred to Walsh RMU, the C-wing only had one representative, inmate Samuel Kelly, who resided in the C-1 section. Am. Compl. at ¶ 3; Vander Bosch Aff. at ¶ 6. Having no general or formal election procedures, the residents of the C-2 area approached Gill and collectively asked that he act as the C-2 Problem Solving Committee representative and work in conjunction with the C-1 representative. Am. Compl. at ¶ 3; Vander Bosh Aff. at ¶ 8. After a majority of the patient/residents in the C-2 living area of the C-wing selected Gill as the C-2 representative, Gill accepted such position. Am. Compl. at 3; Vander Bosh Aff. at ¶¶ 9-11.
Exhibit A, attached to Plaintiff's Amended Complaint, consists of affidavits of eight inmates all housed at Walsh, in the C-wing, during the relevant time. The Court has reviewed the contents of each affidavit and finds that they generally contain the same information sans names, living assignment, and time spent at Walsh. In light of the fact that the affidavits generally contain the same material information, the Court will, in the interest of expedience, make reference to the first Affidavit submitted by Joseph Vander Bosch. It should be noted that in citing to Mr. Vander Bosch's Affidavit, this Court makes no credibility nor reliability assessments with regard to this Affidavit as being more credible than the other seven Affidavits.
On or about September 1, 2002, Gill discussed his selection as the C-2 representative with Defendant Rosado. Am. Compl. at ¶ 8. On or about September 4, 2002, per the direction of Defendant Rosado, Gill submitted an agenda for the upcoming September 2002 Problem Solving Committee meeting. Am. Compl. at ¶ 4; Ex. B (typed agenda). The agenda, which contained multiple issues that were reviewed and approved by the residents of C-wing, was forwarded to Defendants Rosado and Riddick. Am. Compl. at ¶ 4. Plaintiff also attached to the agenda a memorandum he wrote to Defendant Riddick, dated August 29, 2002, notifying the recipients that he had been selected as the C-2 representative and would work in conjunction with the C-1 representative, Mr. Kelly. Id., Ex. B. On or about September 5, 2002, Defendant Riddick provided Plaintiff with a copy of the August 21, 2002 Problem Solving Committee meeting minutes. Am. Compl. at ¶ 5, Ex. C (Memorandum of Minutes of Aug. 21, 2002 Meeting addressed to "All Concerned" from Defendant Riddick).
Gill also asserts he hand delivered the agenda to Mr. Pryor who is not a Defendant in this action. Am. Compl. at ¶ 4, n. 1.
It is unclear, and no inference can be drawn one way or another, whether the minutes were provided to Gill in his capacity as representative or as a general circulation given to all resident inmates.
On or about the morning of September 7, 2002, Gill asked Defendant Brown about a recent memorandum posted by prison officials concerning the Walsh yard staying open until 11:00 p.m., as well as other issues concerning C-wing. Am. Compl. at ¶ 6. In response, Defendant Brown stated that Gill should mind his business and not be concerned about inmate activities. Id. at ¶ 7. Gill then informed Defendant Brown that he had been selected as the C-2 representative to the Problem Solving Committee and C-wing patients had asked him to inquire about their privileges since the posted memorandum was not being honored. Id. When Defendant Brown inquired how Plaintiff obtained such representational status, Gill disclosed his previous September 1st conversation with Defendant Rosado who accepted Plaintiff's appointment. Id. at ¶ 8. After Gill provided Brown with a copy of his August 29th Memorandum, Brown informed Gill that he would check into the yard matter. Id.
On or about September 10, 2002, Gill and inmate Kelly, C-1 representative, met with Defendant Riddick in the C-wing yard to discuss issues presented in the September 2002 proposed agenda. Id. at ¶ 9. During this meeting, Gill asked Defendant Riddick if the agenda he submitted had been circulated and also inquired as to the date of the upcoming meeting. Id. Defendant Riddick responded that there wasn't going to be a meeting until prison officials saw fit and that at no time in the past did the living units have two inmate representatives as one was sufficient. Id. at ¶ 10. Riddick also declared that the agenda was too demanding and that Plaintiff would be subjected to disciplinary action for filing the agenda on the basis that he was submitting legal work on behalf of the inmates in C-wing. Id. The following day, Gill wrote Defendant Rosado about the encounter with Defendant Riddick and requested Defendant Rosado to confirm, based on their previous September 1st conversation, whether she now disapproved of Plaintiff's selection as the C-2 representative. Id. at ¶ 11, Ex. D (typed letter). Defendant Rosado did not respond to Gill's inquiries. Id.
Gill states that upon information and belief, inmate Kelly also wrote a letter to Defendant Rosado regarding Defendant Riddick's disapproval of Gill's selection. Am. Compl. at ¶ 11, n. 3. Plaintiff did not submit Kelly's letter but did attach a memorandum from Defendant Rosado to Kelly in response to Kelly's correspondence dated September 6, 2002. Id., Ex. E. In this correspondence, Rosado states, "[t]he correct procedure for an inmate to represent his unit on the problem solving committee is to be elected by his peers [and] [t]his procedure is overseen by the Guidance Counselor." Id. Gill asserts that Rosado's response to Kelly established for the first time a new policy on how an inmate can become an inmate representative to the Problem Solving Committee. Id.
On or about September 12, 2002, Gill was issued two separate disciplinary reports authored by Defendants Brown and Riddick. Id. at ¶ 12, Ex. G (misbehavior reports). In his report, dated September 11, 2002, Defendant Brown relayed the substance of his September 7th encounter with Plaintiff, which was in accord with Plaintiff's account, as described above. Id. Defendant Brown further stated that, after his encounter with Gill, he wrote to Defendant Riddick to confirm Gill's representations to which Riddick responded in a written statement that Gill was not the Problem Solving Committee representative. Id. Brown accused Plaintiff of violating prison rule 107.20 (lying) and 110.10 (impersonation). Defendant Riddick's report, dated September 10 or 11, 2002, recounts the encounter between himself and Gill on September 10th in the C-wing outside recreation area, however, such report is not in accord with Plaintiff's version. According to Riddick's report, while Riddick was sitting talking with other inmates in the yard, Gill approached him in an aggressive manner, stood over him, and demanded certain information about the Walsh Problem Solving Committee. Riddick replied that, as he told him throughout the week, Gill is not an inmate representative. Id. Riddick claimed that Gill then became loud, stating "you're a racist. You know I file lawsuits and that's why you oppose me as a representative. I am a rep until Administration says otherwise." Id. In his report, Riddick asserted that Gill's loud aggressive speech attracted the attention of the other inmates in the yard. Id. Defendant Riddick accused Plaintiff of violating rules 107.11 (harassment) and 104.13 (disturbance). Id.
Brown asserts in his report that he attached to the report a copy of Riddick's written statement, however, such statement was not included as an exhibit to Plaintiff's Amended Complaint. Plaintiff asserts that at his disciplinary hearing he requested Riddick's written statement, which was not produced. Am. Compl. at ¶¶ 14 17.
It is unclear whether the report is dated September 10th or 11th.
Plaintiff believed that these reports were false and were filed as retaliation for Plaintiff exercising his right to make oral requests and for filing his grievance agenda for the Problem Solving Committee to address at an upcoming meeting. Id. at ¶ 13. Plaintiff filed institutional grievances against Defendants Brown and Riddick for the filing of false disciplinary reports in retaliation for Plaintiff exercising his right to redress grievances to the Problem Solving Committee. Id. at ¶ 13, n. 4, Ex. F (grievance).
Due Process/Retaliation Claims Against Defendants Adamik and Rosado — Third and Fourth Causes of Action
The disciplinary reports authored by Defendants Riddick and Brown were consolidated and a Tier II Hearing on both reports commenced on September 16, 2002, with Defendant Adamik presiding as hearing officer. Am. Compl. at ¶ 14. Gill pleaded not guilty to all charges. Id. Plaintiff requested witness testimony from Defendants Brown, Riddick, and Rosado, C.O. Swanson, and inmates Kelly and Cruz. Id. Plaintiff also requested document production, specifically, the letter sent by Defendant Brown to Defendant Riddick, as referenced in Brown's misbehavior report, as well as any Walsh RMU written policies disclosing the procedures for inmate elections as Problem Solving Committee representative. Id. After Gill testified on his own behalf, the hearing was adjourned "for witnesses and document production." Id. at ¶ 15. On or about September 18, 2002, testimony was procured from inmates Kelly and Cruz, C.O. Swanson, and Defendant Brown. Inmates Kelly and Cruz testified that they were present in the C-wing yard on September 10, 2002, and witnessed the encounter between Defendant Riddick and Gill. Id. at ¶ 16. Both inmates asserted that Gill did not at any time harass or create a disturbance. Id. Inmate Kelly further testified that throughout the duration of his confinement at Walsh, each housing unit had two inmate representatives and that there hadn't been any "elections" for approximately five years. Id. C.O. Swanson testified on Gill's behalf and stated that, on September 10, 2002, he was employed as the "A-man" on C-wing and at no time was he informed by Defendant Riddick, or anyone else, that Plaintiff harassed Riddick or created a disturbance in the yard. Defendant Brown testified about the letter he wrote to Defendant Riddick but could not produce a copy of such letter.
In his Amend ed Complaint, Gill asserts the sum and substance of his testimony was as follows:
[P]er [plaintiff's] September 1, 2002, conversation with defendant Rosado about plaintiff being selected as the C-2 inmate Problem Solving Committee representative by his peers, that there was no disapproval of this selection and that defendant Riddick had in fact provided plaintiff with the August 2002 Problem Solving Committee minutes . . . and that on information and belief, there hasn't been an election held within the past five years to elect representatives. Further, that plaintiff never violated the alleged prison rules violation authored by the named defendants.
Am. Compl. at ¶ 15.
On the same date, that is September 18th, Gill submitted a formal complaint to Defendant Perlman to have Defendant Adamik removed from his role as hearing officer due to his prejudice and failure to conduct a fair and unbiased hearing. Id. at ¶ 19, Ex. H (typed complaint). In sum Gill complained that during the hearing when he and Adamik disagreed on an issue, Gill stated he would appeal that issue to which Adamik responded "you can appeal this issue, but you're going to los[e]." Id. Gill asked Defendant Perlman to assign a different officer to conduct the hearing. Id. Defendant Perlman did not respond to Gill's September 18th complaint. Id. On September 27, 2002, Defendant Brown approached Gill at his living quarters and stated, "next week you'll be locked up, just because you requested for Dep. Rosado as a witness, you think she'll testify for you. You're guilty, accept it, you're in a no win situation. You keep filing fucking grievances around here you'll be locked up until July, smart ass jailhouse lawyer." Id. at ¶ 20. Later that day, Gill filed a grievance against Defendants Brown and Adamik for collusion regarding Gill's disciplinary hearing and asked that Adamik be removed as hearing officer. Id. at ¶ 21, Ex. I (typed grievance).
On or about October 1, 2002, Plaintiff's hearing was set to continue but was briefly adjourned so Gill could retrieve his documents. Id. at ¶ 22. Upon his return to the hearing with his documents in hand, Gill witnessed Defendants Adamik, Rosado, and Riddick exiting a room adjacent to the hearing office. Id. at ¶ 23. It appeared to Gill as though the three had been in a conference behind closed doors prior to the re-commencement of his hearing. Id. When the hearing re-convened, Gill attempted to place on the record what he had witnessed with respect to these Defendants conversing in a separate room, however, Defendant Adamik prevented Plaintiff from placing such information on the record and arbitrarily dismissed Defendant Rosado as Plaintiff's witness and proceeded instead with the testimony of Defendant Riddick. Id.
Gill asserts that Defendant Riddick supplied contradictory testimony that did not support his written report. Am. Compl. at ¶ 23.
At the conclusion of Gill's hearing, on October 1, 2002, Defendant Adamik found Plaintiff guilty of all charges and sentenced Plaintiff to thirty (30) days keeplock confinement with corresponding loss of privileges, recreation, telephone, packages, and commissary. Id. at ¶ 24, Ex. G. Plaintiff's sentence was set to run from October 1st through October 31st. Id. In his hearing disposition statement, Defendant Adamik stated the evidence he relied upon was the misbehavior reports and testimony rendered by Gill, Brown, inmates Kelly and Cruz, C.O. Swanson, and Riddick. Id., Ex. G. Adamik further stated that Rosado was dismissed in the middle of the hearing due to Gill's refusal to ask questions when instructed. Id.
Due Process and First Amendment Claims Against Defendants Malloni and Perlman — Fifth and Sixth Causes of Action
On October 2, 2002, Plaintiff had his Tier II Hearing Appeal notarized by the facility's law library officer. Am. Compl. at ¶ 25. The following morning, Plaintiff issued Defendant Malloni his appeal in a sealed envelope addressed to Superintendent Perlman, with the belief that Defendant Malloni would deposit Plaintiff's mail accordingly. Id. at ¶ 26, Ex. J (copy of typed and notarized appeal). As of October 24, 2002, more than fifteen days had elapsed since the filing of Gill's appeal and Defendant Perlman had still failed to render a decision on such appeal. Id. at ¶ 34. On or about April 15, 2003, while incarcerated at Five Points Correctional Facility, Gill received a memorandum decision from Captain Bellnier stating that Defendant Adamik's October 1st Tier II Hearing Decision had been reversed and all hearing records were expunged. Id. at ¶ 40, Ex. N.
Eighth Amendment Claims Against Defendants Watson and Cacciotti — Seventh Cause of Action
On or about October 17, 2002, Plaintiff was transferred from Walsh RMU back to Elmira Correctional Facility. Am. Compl. at ¶ 27. At approximately 9:30 a.m., on October 17th, Gill was escorted to the transporting vehicle by Defendants Watson and Cacciotti. Id. at ¶ 28. At approximately 11:00 a.m., while en route to Elmira, Gill informed Watson and Cacciotti that he needed to urinate. Id. at ¶ 29. Both Defendants laughed and dismissed Gill's request. Id. Plaintiff then urinated on himself. Id. When he informed Defendants of his condition, Defendant Cacciotti replied, "Howard Stern would love you on his show." Id. Defendants then pulled into a mini-mart gas station at which time Plaintiff again requested use of the facility to relieve himself; such request was again denied. Id. at ¶ 31. Plaintiff was unable to control himself and urinated on himself for a second time. Id. When Gill reported his condition to Defendants, Defendant Cacciotti replied, "I don't care if you shit on yourself." Id. Plaintiff arrived at Elmira at approximately 12:10 p.m.
Retaliation Claim Against Defendant Saxena — Eighth Cause of Action
On or about November 12, 2002, while confined at Elmira, Plaintiff's correction counselor informed Plaintiff that he had been transferred from Walsh for "medical reasons." Id. at ¶ 37. On or about December 11, 2002, Gill filed a grievance against Defendant Saxena for retaliatory transfer. Id. at ¶ 38, Ex. M (grievance). In his grievance, Gill stated that Saxena's transfer was retaliation for his exercise of his constitutional rights and Saxena conspired with other Walsh RMU officials to deny Gill his rights. Id., Ex. M. Gill also requested Saxena explain the medical reasons that led to his transfer. Id.
III. DISCUSSION A. Retaliation Claims
In Plaintiff's First, Second, Third, Fourth, and Eighth Causes of Action, Gill asserts that Defendants Riddick, Brown, Adamik, Rosado, and Saxena retaliated against him for engaging in constitutionally protected activity and in doing so, violated his First Amendment rights as well as his Fourteenth Amendment Substantive Due Process rights.The retaliatory actions vary with each Defendant. With regard to Defendants Riddick and Brown, the adverse action is the filing of false misbehavior reports; Defendant Adamik is alleged to have conspired with Defendants Riddick, Brown, and Rosado in rendering a guilty determination on both reports; Defendant Rosado acted in concert with Defendants Riddick, Brown, and Adamik; and Defendant Saxena transferred Gill to another facility.
First, with regard to Gill's assertion that Defendants Riddick and Brown filed false misbehavior reports against him, we note that prisoners have no constitutional right to be free from being falsely accused, and thus, the filing of a false report does not give rise to a constitutional violation per se. Freeman v. Rideout, 808 F.2d 949, 950 (2d Cir. 1986) (holding that prison inmates do not have a "constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest"). Rather, the Constitution guarantees that such inmates will not be "deprived of a protected liberty interest without due process of law." Id. Thus, as long as the prison officials provided the inmate with procedural due process requirements, i.e., a hearing and an opportunity to be heard, "the filing of unfounded charges d[oes] not give rise to a per se constitutional violation actionable under section 1983." Franco v. Kelly, 854 F.2d 584, 587 (2d Cir. 1988) (quoting Freeman, at 953); see also Wolff v. McDonnell, 418 U.S. at 564-66. In the case at bar, however, Gill is asserting that Defendants Riddick and Brown filed false reports against him as retaliation for the exercise of a constitutional right and thus violated his substantive due process right, under the Fourteenth Amendment, as well as his First Amendment right. The Second Circuit has made it clear that an inmate has a substantive due process right not to be subjected to false misbehavior charges or be harassed in retaliation for the exercise of a constitutional right such as petitioning the government for redress of grievances. Jones v. Coughlin, 45 F.3d 677, 679-80 (2d Cir. 1995); Franco v. Kelly, 854 F.2d at 587-90 (citing cases) ("Although our decision in Freeman accords prison officials wide latitude in disciplining inmates as long as minimum constitutional procedures are employed, . . . that latitude does not encompass conduct that infringes on an inmate's substantive constitutional rights."). Thus, we may properly proceed with an assessment of Gill's retaliation claims against these Defendants.
To state a claim for retaliation, an inmate must demonstrate (1) he or she was engaged in constitutionally protected activity, (2) the defendant took adverse action against the plaintiff, and (3) there was a causal connection between the protected speech and the adverse action in that the alleged conduct was substantially motivated by the protected activity. Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) (citing Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)); see also Gayle v. Gonyea, 313 F.3d 677 (2d Cir. 2002) (alleging false disciplinary report); Hendricks v. Coughlin, 114 F.3d 390 (2d Cir. 1997) (alleging retaliatory transfers).
The Second Circuit has noted that retaliation claims are prone to abuse, therefore, courts should examine such claims "with skepticism and particular care." Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003); Dawes v. Walker, 239 F.3d at 491 ("[V]irtually any adverse action taken against a prisoner by a prison official — even those otherwise not rising to the level of a constitutional violation — can be characterized as a constitutionally proscribed retaliatory act."); see also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996); Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 467-68 (S.D.N.Y. 1998).
In Flaherty v. Coughlin, the Second Circuit described three different methods of pleading retaliation, each requiring separate analysis by the court. 713 F.2d 10, 13 (2d Cir. 1983). First, a retaliation claim supported by "specific and detailed allegations" must be pursued with full discovery. Id. (cited in Carpio v. Walker, 1997 WL 642543, at *6 (N.D.N.Y. Oct. 15, 1997)). Whereas, a claim asserting retaliation in "wholly conclusory terms may safely be dismissed on the pleadings alone." Id. ("In such a case, the prisoner has no factual basis for the claim other than an adverse administrative decision and the costs of discovery should not be imposed on defendants."). The third situation involves a complaint alleging facts that give rise to a "colorable suspicion of retaliation." Id. This third type of case will support at least documentary discovery. Id.; see also Carpio v. Walker, 1997 WL 642543, at *6.
The first prong of a retaliation analysis requires this Court to assess whether Gill was engaged in constitutionally protected activity. In construing Gill's Complaint, it appears that the protected activity at issue is two-fold. On the one hand, Gill asserts he had a constitutional right to serve as the C-2 wing inmate representative to the Walsh Problem Solving Committee and to participate on that Committee without repercussion. On the other hand, Gill asserts that the filing of his "Grievance Agenda" and making oral complaints about the facility's procedures and enforcement therewith was the protected activity and the motivating factor for the retaliation he received. While the Defendants focus on the former theory, this Court finds that it is Gill's latter theory which saves his claim from dismissal at this juncture. Such theory is not raised for the first time in his opposition to the Defendants' Motion as Defendants suggest. In fact, Gill makes multiple references in his Complaint to his filing a "Grievance Agenda" as well as making oral complaints which, in his estimation, served as the basis for the retaliatory backlash he received, namely, false reports, guilty determinations, and a facility transfer. Our assessment that the agenda and statements are the primary constitutional activities at issue is further bolstered by Gill's assertion that Defendants Riddick, Brown, Rosado, and Adamik violated New York's Correction Law § 138, which states in pertinent part: "Inmates shall not be disciplined for making written or oral statements, demands, or requests involving a change of institutional conditions, policies, rules, regulations, or laws affecting an institution." N.Y. CORRECT. LAW § 138(4). We now assess whether Gill has properly met the first prong of the retaliation analysis.
In their Reply, Defendants assert that Plaintiff, in his Opposition, "shifts his focus towards arguing that the retaliation against him was instead because he filed grievances, which defendants admit would be constitutionally protected conduct under the law." Dkt. No. 28, Defs.' Reply at p. 2. Defendants then point out that Plaintiff only mentions the filing of grievances in a footnote in his Amended Complaint. Id. It is this Court's estimation that Defendants have misconstrued, to some extent, Plaintiff's use of the word "grievance," in categorically stating that he shifted his focus. It is clear from both the Amended Complaint and Plaintiff's Opposition to Defendants' Motion that the "grievance" Plaintiff refers as the basis for the retaliatory acts is primarily the "grievance agenda" he submitted for the upcoming Problem Solving Committee meeting. That is not to say that the Plaintiff has not alleged, that the Grievance he filed against Defendant Riddick for threatening him with disciplinary conduct, attached to the Amended Complaint as Exhibit F, may also have played a role in the retaliatory actions. We only point out that Gill has not attempted to salvage his claims by asserting new theories in his Opposition papers.
First, we address Gill's participation on the Problem Solving Committee, which Defendants assert is not protected conduct. While the Second Circuit has not definitively weighed in on the matter, other district courts throughout this Circuit have held that an inmate's participation as a member of a formal problem solving committee, such as the Inmate Grievance Resolution Committee (IGRC) or the Inmate Liason Committee (ILC), is protected activity. In Alnutt v. Cleary, 913 F. Supp. 160 (W.D.N.Y. 1996), the court held that an inmate has a protected First Amendment right to "engage in his duties as IGRC representative without fear of reprisal or retaliation." 913 F. Supp. at 169. In reaching this determination, the court relied on a multitude of precedents establishing an inmate's protected right to seek redress for grievances. First, the court began with the premise recognized by the Second Circuit in Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988) that "prisoners must be permitted the 'free and uninhibited access' to both administrative and judicial forums for the purpose of seeking redress of grievances." Id. (quoting Franco, 854 F.2d at 589). The court then cited the following precedents amongst the district courts in this Circuit, as well as cases from sister Circuits, holding that petitioning for redress of grievances is protected activity:
Jones v. Coughlin, 45 F.3d 677 (2d Cir. 1995) (inmate stated cause of action where he alleged retaliation as result of administrative complaint he filed against corrections officer); Morrison v. Lefevre, 592 F. Supp. 1052 (S.D.N.Y. 1984) (inmate stated cause of action where he alleged retaliation, due, in part, to assistance he provided to other prisoners in filing lawsuits); McCorkle v. Walker, 871 F. Supp. 555 (N.D.N.Y. 1995) (inmate stated a claim where he alleged that a prison nurse filed false charges against him in retaliation for his informing prison officials that she was nurse on duty when another inmate nearly drowned in infirmary); Payne v. Axelrod, 871 F. Supp. 1551 (N.D.N.Y. 1995) (inmate stated cause of action where he alleged that a razor blade was planted in his cell in retaliation for reporting that a corrections officer set a fire in an inmate's cell); Cale v. Johnson, 861 F.2d 943 (6th Cir. 1988) (inmate stated cause of action by alleging retaliation for complaining to associate warden concerning the poor quality of the food); McDonald v. Hall, 610 F.2d 16 (1st Cir. 1979) (inmate stated cause of action where he alleged that he was transferred in retaliation for filing suits against prison officials, and for giving legal assistance to other inmates).Alnutt v. Cleary, 913 F. Supp. at 169.
The court then noted that the principles established in the above cases "support the concept that [the inmate plaintiff] has a protected First Amendment right to engage in his duties as IGRC representative without fear of reprisal or retaliation." Id. (emphasis added). Then, after explaining the statutory evolution of the IGRC, the court noted that the inmates who filed grievances with the IGRC were exercising their First Amendment right to petition the government for redress of grievances and that "[i]t would be curious indeed for this Court to recognize the rights of inmates to petition for redress of grievances without fear of retaliation but deny [the inmate plaintiff] the same right in connection with his role in reviewing inmate grievances and ruling on them." Id. at 169-70. As such, the court held that the inmate possessed a "constitutional right to be protected against retaliation by state officers who are not pleased with the activities engaged in and decisions made by [the inmate plaintiff] as IGRC representative." Id. Thus, it appears to this Court that an inmate's constitutionally protected right to serve as a grievance committee representative is derived from the inmates' protected rights to petition for redress. This derivative right has been upheld in other courts in this Circuit. See Greene v. Coughlin, 1995 WL 60020, at *15 (S.D.N.Y. Feb. 10, 1995) (analyzing, in the context of a procedural due process claim, whether an inmate had a liberty interest in maintaining position as IGRC representative and if certain procedures were mandated prior to removal from such position); McCorkle v. Juchenwicz, 1999 WL 163205, at *1 (S.D.N.Y. Mar. 23, 1999) (upholding an inmate's right to serve on the ILC and citing Alnutt, inter alia, in support of the ruling that "an inmate grievance committee representative has a constitutional right to seek redress of the grievances of other inmates without fear of retaliation"); Maurer v. Patterson, 197 F.R.D. 244, 247 n. 3 (S.D.N.Y. 2000) (noting, in the context of deciding a Rule 50 motion for judgment as a matter of law, that an inmate has a protected right to engage in duties as IGRC representative); Garrett v. Reynolds, 2003 WL 22299359, at *4 (N.D.N.Y Oct. 7, 2003) (citing Alnutt for the proposition that an inmate has a "constitutional right to be protected from retaliation based upon his activities as an IGRC representative").
Thus, in construing Alnutt, we find that prisoners have a constitutional right to serve as a grievance committee representative. While other courts have limited the Alnutt holding to participation on the IGRC and ILC, we do not believe the reasoning applied therein supports such limitation in the case at bar. If an inmate's right to serve on a "formal" committee, like the IGRC, is derived from an inmate's right to seek redress of grievances, and not from the "formal creation" or state mandate of the committee, then it cannot be said that such right is solely limited to activities on a formal resolution committee. It would be more consistent to rule that an inmate serving on an "informal" grievance committee would also be entitled to constitutional protection since he would be performing the same tasks as a representative on a formal committee, such as the IGRC. The difference between formal and informal grievance committees is a distinction without form or reason. This leads us to an analysis of the other protected activity Gill asserts was the basis for retaliatory conduct imposed on him, that is, his filing of the grievance agenda and making oral complaints. We find that such conduct is clearly protected. See McCorkle v. Walker, 871 F. Supp. 555, 559 (N.D.N.Y. 1995) (protected conduct at issue in plaintiff's retaliation claim was that he informed prison officials that the defendant nurse had been on duty at the infirmary when another inmate nearly drowned); Gaston v. Coughlin, 81 F. Supp. 2d 381, 386 (N.D.N.Y. 1999) (protected conduct at issue was plaintiff's complaints to mess hall staff that his work schedule was a violation of state law). Moreover, New York State has enacted legislation that specifically protects Gill's conduct: "Inmates shall not be disciplined for making written or oral statements, demands, or requests involving a change of insitutional conditions, policies, rules, regulations, or laws affecting an institution." N.Y. CORRECT. LAW § 138(4); see also Gaston v. Coughlin, 81 F. Supp. 2d at 386 (noting that the prisoner's "attempts to obtain redress of a perceived violation of State law" were protected under both the Constitution and New York law); Salahuddin v. Harris, 657 F. Supp. 369, 376 (S.D.N.Y. 1987) (noting that § 138(4) "suggests that New York views the broad exercise of inmates' First Amendment rights as consistent with its own penological interests and the order and security of the inmate population). Thus, since clearly Gill's attempts to seek redress of grievances is protected activity, it is worth repeating, "[i]t would be curious indeed for this Court to recognize the rights of inmates to petition for redress of grievances without fear of retaliation but deny [the inmate plaintiff] the same right in connection with his role in reviewing inmate grievances and ruling on them." Alnutt, 913 F. Supp. at 169-70.
Defendants similarly construe that an inmate's right to serve on a grievance committee is limited to the formal committee, namely, the IGRC. Dkt. No. 20 (arguing that "activities conducted as part of an informal problem resolution committee do not have the same protection" as IGRC activities, if protected, since "there is no case law supporting such an argument").
In researching the genesis of an inmate's right to serve on a grievance committee, the Court found an unpublished Tenth Circuit opinion where the court was asked to decide whether an inmate has a protected right to provide legal work on behalf of another inmate. See Northington v. Zavaras, 229 F.3d 1164 (Table), 2000 WL 1133128 (10th Cir. Aug. 10, 2000). The circuit court stated that precedence in that circuit mandated the holding that such a right was not acknowledged. Id. at *2. In so ruling, the court noted in a footnote that "other federal courts have held that, if a state creates a position such as inmate representative, it must allow the representative to engage in his duties without fear of retaliation." Id. (emphasis added) (citing, inter alia, Alnutt). We mention this unpublished decision only to point out that we do not interpret Alnutt the same. While the court in Alnutt referenced the state creation of the IGRC, the constitutional right to serve on that committee was not derivative of the state created nature of the committee, but rather, on the nature of the inmates' rights to seek redress for grievances.
In any event, even if we were to find that an inmate is only protected for participation on a formal committee, it is not clear to this Court whether or not the Problem Solving Committee at Walsh RMU was a formal tribunal.
Defendants ask this Court to find that, in light of the Supreme Court decision in Shaw v. Murphy, 532 U.S. 223 (2001), the rulings of the various district courts in our Circuit that hold that an inmate's activities on a grievance committee are protected are "no longer with force." Dkt. No. 20 at p. 7. The Court declines this invitation and finds Shaw completely distinguishable. First, Shaw concerned the constitutionality of a prison policy restricting inmate-to-inmate correspondence. In Shaw, Kevin Murphy, an inmate incarcerated at the Montana State Prison, served as an "'inmate law clerk,' providing legal assistance to fellow prisoners." 532 U.S. at 225. Murphy learned that another inmate had been charged with assaulting a correctional officer and decided to assist the inmate with his defense. Id. Prison rules prohibited Murphy from providing assistance, but Murphy nonetheless investigated the alleged assault. Id. Murphy then sent a letter to the accused inmate discussing his investigation. However, in accordance with prison policy, such correspondence was intercepted by prison officials. Id. at 225-26. Based upon the content of the letter, specifically, the accusations against the assaulted correction officer, Murphy was cited for violations of various disciplinary rules, and, after a hearing, was found guilty of violating two of those rules. Id. at 226.
Prison policy forbade Murphy, a "high-security" inmate from meeting with maximum security inmates. Murphy, 532 U.S. at 225 n. 1.
Before examining the Supreme Court's holding, we pause to point out some other distinctions, that is, in Shaw the inmate acted as a legal representative for inmates and sought to represent another inmate in court on his criminal charge of assault; whereas a representative on a grievance committee does not act as a legal representative, but rather, as a facilitator or adjudicator of grievances. Furthermore, the Court in Shaw was asked to decide "whether prisoners have any First Amendment rights when they send legal correspondence to one another." Id. (emphasis in original). Thus, the Court analyzed whether the prison policy at issue restricting inmate-to-inmate communications passed the constitutional test established in Turner v. Safely, 482 U.S. 78 (1987), which directs courts to ask wether the "restrictions are reasonably related to legitimate and neutral governmental objectives." Id. (citing Turner, 482 U.S. at 89). Here, we are not asked to construe the constitutionality of any prison policy restricting Gill's communications.
In applying the Turner Test to the prison policy at issue, the Supreme Court in Shaw declined to afford First Amendment protection to inmates providing legal assistance to other inmates "beyond the protection normally accorded prisoners' speech." Id. at 231. We find such holding to be inapplicable to inmates participating on grievance committees in light of the fact that such participation and activities do not constitute legal work, but rather, involve a duty to investigate and adjudicate matters being grieved. Thus, it can hardly be said that a grievance committee member's role is analogous to an inmate performing legal work on behalf of other inmates. Taking this one step further, we also believe that the filing of an institutional grievance by an inmate on behalf of himself as well as others who share the same grievance is not comparable to providing legal assistance to other inmates. We also note that, as explained above, the right to serve as a grievance committee representative derives from an inmate's right to seek redress of grievances, a right undoubtedly protected by the Constitution.
The inmate in Shaw argued that his right to provide legal advice "follows from a right to receive legal advice." 532 U.S. at 231 n. 3. In response, the Supreme Court noted that "even if one right followed from the other, Murphy is incorrect in his assumption that there is a free-standing right to receive legal advice." Id. (citing previous Supreme Court precedence limiting an inmate's right to receive legal advice from other inmates "only when it is a necessary means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Id. (internal quotation marks and citations omitted). Neither the Supreme Court nor any court in our Circuit has similarly limited an inmate's right to seek redress of grievances.
Finding that Gill has satisfied the first prong, our analysis of his retaliation claims continues. Under the second prong, a prisoner must allege that the Defendants took adverse action against him. The third prong requires an assessment of whether there was a causal connection between the protected speech and the adverse action in that the alleged conduct was substantially motivated by the protected activity. To satisfy the second prong, a prisoner must present evidence inferring that Defendants acted with an improper motive. Such evidence may include: (1) temporal proximity between the protected activity and the alleged retaliatory act; (2) plaintiff's prior good disciplinary record; (3) plaintiff's vindication at his disciplinary hearing; and (4) defendants' statements regarding their motive for the discipline. See Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir. 1995). A plaintiff may meet this burden by presenting circumstantial evidence of a retaliatory motive, thus obviating the need for direct evidence. Bennett v. Goord, 343 F.3d 133, 139 (2d Cir. 2003) (holding that plaintiff met his burden in proving retaliatory motive by presenting circumstantial evidence relating to, inter alia, the temporal proximity of allegedly false misbehavior reports and the subsequent reversal of the disciplinary charges on appeal as unfounded). "Only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation." Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (citing Dawes v. Walker, 239 F.3d at 493). Otherwise, the retaliatory act is " de minimis and therefore outside the ambit of constitutional protection." Dawes v. Walker, 239 F.3d at 493. Furthermore, in satisfying the causal connection requirement, also known as temporal proximity, the allegations must be "sufficient to support the inference that the speech played a substantial part in the adverse action." Id. at 492 (cited in Davis, 320 F.3d at 353).
As stated above, the adverse conduct varies with each Defendant. First, with regard to Defendant Rosado, it is unclear to this Court the precise role Gill alleges Rosado played in retaliating against him. Stated another way, it is unclear what adverse action was taken by Rosado. Gill's bald assertion that Rosado conspired with other Defendants to deny Gill his constitutional rights is wholly conclusory. It is well settled that the personal involvement of a defendant is a prerequisite for the assessment of damages in a § 1983 action. McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). Defendant Rosado's involvement is rather limited. According to Gill's Amended Complaint, he discussed his selection as C-2 representative with Rosado on or about September 1, 2002. Rosado then directed Gill to submit a grievance agenda for the upcoming meeting. Then, after his altercation with Defendant Riddick in the yard, Gill wrote Rosado a letter to confirm their previous conversation regarding his selection as a representative on the committee. Gill never received a response from Rosado. Then, Rosado was set to testify at Gill's hearing but was dismissed by the hearing officer. Based on the above facts, it has not been shown what action was taken by Rosado. From these bare facts, we cannot draw the inference that Rosado actively impeded Gill's ability to participate on the committee. It is clear from the facts alleged that, at best, Rosado's failure to speak on Gill's behalf or answer his correspondence, if received, amounts to nothing more than indifference or inactiveness, which is clearly not a constitutional violation. Furthermore, the fact that Plaintiff may have written a letter does not automatically render Rosado responsible for any constitutional violation. See Thomas v. Coombe, 1998 WL 391143, at *6 (S.D.N.Y. July 13, 1998) (ignoring letter is insufficient for personal involvement); Young v. Kihl, 720 F. Supp. 22, 23 (W.D.N.Y. Sep. 22, 1989) (the wrong must have been capable of mitigation at the time the supervisory official was apprised thereof); Woods v. Goord, 1998 WL 740782 (S.D.N.Y. Oct. 23, 1998) (receiving letters or complaints does not automatically make a supervisor liable for the denial of medical care). Since Gill has not established any adverse conduct, he has failed to state a retaliation claim against Defendant Rosado. We therefore recommend dismissal of Gill's retaliation claim against Defendant Rosado.
Turning to the other Defendants, Gill asserts that Defendants Riddick and Brown filed false misbehavior reports, Defendant Adamik found Plaintiff guilty of the false reports, and Defendant Saxena transferred Gill to another facility. In moving for dismissal, Defendants focus solely on Gill's transfer from a medical facility to a non-medical facility as the only retaliatory conduct at issue and that such conduct is not adverse where the Plaintiff has not alleged that "his medical needs can only be treated adequately at Walsh and not the facility to which he was transferred." Dkt. No. 20. In his Amended Complaint, Gill explains that upon his arrival at Walsh in June 2002, he was informed by Defendant Saxena that he had been transferred to Walsh due to his asthmatic condition and that he would remain at Walsh until his parole board appearance set for July 2003. The chronology of events unfolded as follows:
September 1, 2002 Gill and Rosado converse about his selection as representative; September 4, 2002 Gill circulates the grievance agenda; September 7, 2002 Confrontation between Defendant Brown and Gill; September 10, 2002 Confrontation between Defendant Riddick and Gill; September 12, 2002 Gill receives two misbehavior reports, one from Brown, the other from Riddick; September 16, 2002 Hearing on reports with Defendant Adamik presiding; October 1, 2002 Defendant Adamik finds Gill guilty and dispenses keeplock punishment for thirty days and corresponding loss of privileges; October 17, 2002 Gill transferred to another facility on Dr. Saxena's orders April 15, 2003 Disciplinary disposition overturned; records expunged.
Based upon this chronology, and focusing on the temporal proximity of Gill's exercise of his constitutional rights and adverse action, coupled with the fact that his disciplinary disposition was overturned on appeal, we find that Gill's retaliation claims against Defendants Riddick, Brown, Adamik, and Saxena, raise at least a colorable suspicion of retaliation such that he is entitled to pursue some discovery. While it is true that Gill has not asserted that the medical care he received at another facility was inadequate, he has at least stated a claim that the transfer itself was improperly motivated. As such, he has stated a cause of action for retaliation. Based on the above analysis, we recommend that Defendants' Motion for dismissal of Gill's retaliation First Amendment and substantive due process claims against Defendants Riddick, Brown, Adamik, and Saxena be denied and discovery proceed on these claims.
We note that in situations where the defendant's actions are the result of both retaliatory and legitimate reasons, the burden shifts to the defendants to show that they would have taken the same action absent the retaliatory motive. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citing Mount Healthy Sch. Dist. v. Doyle, 429 U.S. 274, 287 (1977)); Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994) (cited in Carpio v. Walker, 1997 WL 642543, at *6 (N.D.N.Y. Oct. 15, 1997)); see also Gayle v. Gonyea, 313 F.3d at 682 (defendant may successfully meet this burden of justification with regard to a particular punishment by demonstrating that "plaintiff committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report"). Thus, Defendants may pursue and defend their motives for their actions in a motion for summary judgment.
B. Procedural Due Process Claims
Gill asserts that Defendant Adamik violated Gill's constitutional rights when Adamik failed to conduct a fair and impartial hearing, denied Gill the opportunity to present his own witnesses, failed to issue a written statement as to the reason for such denial, and conspired with Defendants Riddick, Brown, and Rosado to violate Gill's First and Fourteenth Amendment rights. Gill also asserts that, in committing the conduct above, Defendant Adamik violated New York Correction Law § 138. As to Defendants Malloni and Perlman, Gill maintains that these Defendants violated his constitutional rights when Defendant Malloni destroyed Gill's notarized appeal of his disciplinary hearing and Defendent Perlman failed to render a timely decision on such appeal. It appears to this Court that the claims against these three Defendants center around the disciplinary hearing and are primarily rooted in Fourteenth Amendment Procedural Due Process.
With regard to procedural due process allegations, we note that in order to state a due process claim under § 1983, an inmate must first establish that he enjoys a protected liberty interest. Arce v. Walker, 139 F.3d 329, 333 (2d Cir. 1998) (citing Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). Inmates' liberty interests are typically derived from two sources: (1) the Due Process Clause of the Fourteenth Amendment; and (2) state statute or regulations. Id. If the prisoner successfully establishes the presence of a protected liberty interest, he must then demonstrate that he was deprived of that interest without due process. Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998). If, however, no liberty interest is implicated, then a fortiori, our analysis ceases and the claim should be dismissed.
The deprivation at issue in this case is the thirty (30) day disciplinary sentence in keeplock with corresponding loss of privileges. Therefore, in order for the Court to assess the viability of the process Gill received at his hearing, Gill must initially show that he possessed a liberty interest in remaining free from keeplock and receiving recreation, packages, commissary, and phone privileges. As explained below, the Court finds that Gill cannot establish the existence of such a liberty interest and therefore cannot maintain procedural due process claims against Defendants Adamik, Malloni, and Perlman.
With regard to liberty interests arising directly under the Due Process Clause, the Supreme Court has "narrowly circumscribed its scope to protect no more than the 'most basic liberty interests in prisoners.'" Arce v. Walker, 139 F.3d at 333 (quoting Hewitt v. Helms, 459 U.S. 460, 467 (1983)). The Due Process Clause does not protect against "every change in the conditions of confinement having a substantial adverse impact" on inmates if those changes are "within the normal limits or range of custody which the conviction has authorized the state to impose." Sandin v. Conner, 515 U.S. 472, 478 (1995). Instead, the Due Process Clause protects against restraints or conditions of confinement that "exceed the sentence in . . . an unexpected manner." Id. at 484 (quoted in Arce v. Walker, 139 F.3d at 333).
State statutes and regulations may also confer liberty interests on prisoners. Arce v. Walker, 139 F.3d at 334 (citing Kentucky Dep't of Corr., 490 U.S. at 460). Such interests, however, are generally limited to those deprivations which subject a prisoner to "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. at 484; see also Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001) (citing Sandin); Welch v. Bartlett, 196 F.3d at 392. Thus, a prisoner asserting that he was denied due process in connection with segregated confinement or a loss of privileges must make a threshold showing that his confinement or restraint (1) created an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," Sandin, 515 U.S. at 484, and (2) that the "state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint," Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996).
Clearly, the thirty-day sentence to keeplock and corresponding loss of privileges would not fall under the auspice of "the most basic liberty interests" and, therefore, Gill would not have a valid liberty interest arising under the Due Process Clause. As for a state created liberty interest, Gill fails to allege any facts demonstrating that the conditions surrounding his thirty-day punishment were "atypical" or "significant" as to create a liberty interest. As such, where no liberty interests are at stake, no procedures are required. Kentucky Dep't of Corr., 490 U.S. at 460. Since Gill cannot establish he had a liberty interest in remaining free from the punishment imposed at the disciplinary hearing, the Court need not assess the adequacy of the process he received. Accordingly, Plaintiff has failed to state a procedural due process claim. See Husbands v. McClellan, 990 F. Supp. 214, 217 (W.D.N.Y. 1998) (citing Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) for the proposition that loss of privileges, i.e., commisary, recreation, package, and telephone, did not amount to an atypical and significant deprivation and clearly fell within the expected parameters of the sentence imposed by a court of law); see also Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 9 (1979) ("There is a crucial distinction between being deprived of a liberty one has . . ., and being denied a conditional liberty that one desires.") (quoted in Roucchio v. Coughlin, 923 F. Supp. 360, 371 (E.D.N.Y. 1996)). We further note that, with regard to Defendant Rosado, Gill has failed to allege Rosado's personal involvement in any alleged due process violations. It is therefore, recommended that Defendant's Motion to Dismiss be granted and any procedural due process claims asserted against Defendants Adamik, Malloni, Perlman and Rosado be dismissed. Since we recommend dismissal of the claims asserted against Defendants Perlman and Rosado, these Defendants should be dismissed from this lawsuit.
C. Interference with Legal Mail
In his Fifth Cause of Action against Defendant Malloni, Gill asserts that Defendant Malloni also violated his First and Fourteenth Amendment rights when he tampered with Gill's "legal mail." In this regard, Gill analogizes his prison disciplinary appeal to legal mail and Malloni's interference therewith denied Gill access to the courts. Were we to draw the same analogy, we would nevertheless find such claim to be wholly conclusory and should be dismissed. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) ("[C]omplaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead a litany of general conclusions that shock but have no meaning."); see also Cekic v. Coombe, 2000 WL 1373136, at *1 (N.D.N.Y. Mar. 27, 2000) (quoting Barr). Notably, Gill's legal mail claim fails to properly allege a cognizable cause of action for interference with legal mail since he only cites to this one instance, he has not pled malicious intent, and he cannot show that he was prejudiced by the interference in light of the fact that the appeal was ultimately decided in his favor. Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (citing cases for the proposition that an isolated incident of tampering is insufficient to state a constitutional violation and in cases where the incidents are few and a violation is not patent, the plaintiff must specifically allege invidious intent or actual harm); Cancel v. Goord, 2001 WL 303713, at *4-6 (S.D.N.Y. Mar. 29, 2001) (citing Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986) for the proposition that a prisoner who asserts a First Amendment violation resulting from interference with mail must show that the prison officials "regularly and unjustifiably interfered with the incoming legal mail," and citing Lewis v. Casey, 518 U.S. 343, 353 (1996) for the proposition that "in order to survive a motion to dismiss a plaintiff must allege not only that the defendant's alleged conduct was deliberate and malicious, but also that the defendant's actions resulted in actual injury to the plaintiff such as the dismissal of an otherwise meritorious legal claim.")). Accordingly, such claims, to the extent stated, should also be dismissed against Defendant Malloni. Since we recommend dismissal of the only claims asserted against Defendant Malloni, we accordingly recommend dismissal of Defendant Malloni from this lawsuit.D. Eighth Amendment Claims
Gill asserts that Defendants Cacciotti and Watson violated his Eighth Amendment right to be free from cruel and unusual treatment when they denied him the opportunity to use the bathroom while en route to Elmira Correctional Facility and further tantalized him when he informed them that he had urinated on himself. According to the Complaint, Plaintiff boarded the transferring vehicle at approximately 9:30 a.m., he asked to use a bathroom at 11:00 a.m., and arrived at Elmira at approximately 12:10 p.m. Plaintiff's Eighth Amendment claim centers around the hour and ten minutes he was denied access to a lavatory.
The Eighth Amendment prohibits the infliction of cruel and unusual punishment and is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 666-67 (1962) (cited in Tramell v. Keane, et al., 338 F.3d 155, 161 (2d Cir. 2003)). The Eighth Amendment is violated only by those deprivations which deny "the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Conditions of confinement rise to the level of an Eighth Amendment violation only when extreme deprivations are imposed. Hudson v. McMillian, 503 U.S. 1 (1992). A prisoner alleging that a certain prison condition constitutes cruel and unusual punishment must prove both an objective and subjective element, specifically, the inmate must show that the deprivation at issue is "'objectively sufficiently serious' such that the plaintiff was denied 'the minimal civilized measure of life's necessities,'" and that the defendant possessed a "'sufficiently culpable state of mind' associated with 'the unnecessary and wanton infliction of pain.'" Trammell v. Keane, 338 F.3d 155, 161 (2d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)); see also Wilson v. Seiter, 501 U.S. 194 (1991). The objective component of an Eighth Amendment violation must be evaluated based on the severity of the deprivation imposed. Graham v. Fries, 1996 WL 1057212, at *8 (E.D.N.Y. Oct. 16, 1996). When considering whether a particular condition is so serious as to invoke the Eighth Amendment, a court should assess the "duration of the condition and the potential for serious physical harm." Whitted v. Lazerson, 1998 WL 259929, at *2 (S.D.N.Y. May 21, 1998); see also Graham v. Fries, 1996 WL 1057212, at * 8 ("While many conditions may be restrictive and harsh, they do not violate the Eighth Amendment unless they deprive inmates of the minimal civilized measures of life's necessities."). To prove the second, subjective component, a prisoner must establish that the person who inflicted the unconstitutional condition was "deliberately indifferent" to the severe deprivation. Wilson v. Seiter, 501 U.S. at 304-05.
Applying these standards to the case at bar, we find that, in accordance with case law in this circuit, "[t]he temporary deprivation of the right to use the toilet, in the absence of serious physical harm or a serious risk of contamination, does not rise to the level of an Eighth Amendment violation." Whitted v. Lazerson, 1998 WL 259929, at *2 (no violation where prisoner urinated and defecated on himself after being deprived the opportunity to use a toilet for approximately ninety minutes); see also Odom v. Keane, 1997 WL 576088, at *4-5 (S.D.N.Y. Sept. 17, 1997) (absence of a working toilet in prison cell for approximately ten hours, absent any allegation that the prisoner risked contamination by contact with human waste, did not rise to the level of cruel and unusual punishment); Bourdon v. Roney, 2003 WL 21058177, at *30-31 (N.D.N.Y. Mar. 6, 2003) (pre-trial detainee deprived of bathroom privileges for a maximum of three hours "failed to adequately allege that he was denied minimal necessities of civilized life for a substantial period of time"). Gill has not alleged any injury to his health as a result of being forced to hold his urine and any discomfort he experienced lasted only seventy minutes, at most. No matter how humiliating urinating on oneself can be, since Gill has failed to prove the objective component, we need not reach the subjective component because "without a constitutional violation, Defendants clearly could not have acted with "deliberate indifference." Odom v. Keane, 1997 WL 576088 (S.D.N.Y. Sept. 15, 1997). As such, Gill has failed to allege a cognizable cause of action under the Eighth Amendment. We therefore recommend granting Defendants' Motion to Dismiss as to this ground and, since this Eighth Amendment violation was the only cause of action asserted against Defendants Cacciotti and Watson, we recommend dismissing these Defendants from this lawsuit.
Plaintiff's reference to Hope v. Pelzer, 536 U.S. 730 (2002), in support of his Eighth Amendment claim is misplaced. The plaintiff in Hope had been handcuffed, naked, to a hitching post for seven hours and was exposed to an extraordinary summer sun. Here, the discomfort Gill experienced lasted, at most, seventy minutes.
D. Qualified Immunity
As an affirmative defense, Defendants Riddick, Brown, Rosado, Saxena, Cacciotti, and Watson assert they are entitled to qualified immunity. Because we have already recommended dismissal of the Eighth Amendment claims asserted against Cacciotti and Watson, and the retaliation/due process claims against Defendant Rosado, we need not address the applicability of any immunity doctrine. Saucier v. Katz, 533 U.S. 194, 201 (2001) ("If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity."). However, with regard to Defendants Riddick, Brown, and Saxena, since a constitutional violation has been established, at least at this limited stage of the litigation, we may proceed with an assessment of immunity.
The doctrine of qualified immunity shields public officials from suit for conduct undertaken in the course of their duties if it "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Firzgerald, 457 U.S. 800, 818 (1982); Eng v. Coughlin, 858 F.2d 889, 895 (2d Cir. 1988). The doctrine protects public officials from 'personally facing the risk of incurring ruinous liability in the form of money damages, which would deter qualified people from public service." Eng, 858 F.2d at 895.
Qualified immunity analysis involves a three step inquiry. See Harhay v. Town of Ellington Bd. of Ed., 323 F.3d 206, 211 (2d Cir. 2003). As a threshold matter, it must first be determined whether, based upon the facts alleged, a plaintiff has established a constitutional violation. Id. If yes, the court must then question whether the right in issue was clearly established at the time of the alleged violation. Id. (citing Saucier v. Katz, 533 U.S. 194, 201-02 (2001)). Finally, if a plaintiff had a "clearly established, constitutionally protected right that was violated, he or she must demonstrate that it was not objectively reasonable for the defendant to believe that his action did not violate such law." Gill v. Hoadley, 261 F. Supp. 2d 113, 125 (N.D.N.Y. 2003) (citing, inter alia, Harhay, 323 F.3d at 211); see also Anderson v. Creighton, 483 U.S. 635, 639 (1987); Lewis v. Cowan, 165 F.3d 154, 166 (2d Cir. 1999).
Qualified immunity is an affirmative defense that must be pleaded by the official claiming it. Satchell v. Dilworth, 745 F.2d 781, 784 (2d Cir. 1984) (citing Harlow v. Fitzgerald, 457 U.S. at 815). The only pleadings filed in the present case, thus far, are the Original and Amended Complaints. Defendants have not raised this affirmative defense in a responsive pleading as set forth in FED. R. CIV. P. 8(c), but rather have done so in their Memorandum of Law in support of their Motion to Dismiss. Generally, however, "the defense of qualified immunity cannot support the grant of a . . . 12(b)(6) motion for failure to state a claim upon which relief can be granted." Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir. 1983); see also McKenna v. Wright, 2004 WL 2334909, at *2 (2d Cir. Oct. 18, 2004) (quoting Green). An exception to this general rule exists where the complaint itself sets up, on its face, the qualified immunity defense; in such an occasion, dismissal for failure to state a claim would be appropriate. Roniger v. McCall, 22 F. Supp. 2d 156, 162 (S.D.N.Y. 1998) (citing Green v. Maraio, 722 F.2d at 1019); see also McKenna v. Wright, 2004 WL 2334909.
The Second Circuit has further held that qualified immunity "turns on factual questions that cannot be resolved at [the motion to dismiss] stage of proceedings." Taylor v. Vermont Dep't of Ed., 313 F.3d 768, 793 (2d Cir. 2002). For these reasons, any adjudication as to the applicability of the qualified immunity affirmative defense would be premature since "[r]esolution of qualified immunity depends on the determination of certain factual questions that cannot be answered at this stage of the litigation." Denton v. McKee, 332 F. Supp. 2d 659, 666 (S.D.N.Y. 2004).
Essentially, Defendants contend that it was not clearly established that an inmate has a First Amendment right to participate on an informal grievance committee and that the Supreme Court ruling in Shaw suggests otherwise. As explained above, we do not agree with the Defendants assessments and find that the conduct engaged in was clearly protected. However, the Court declines to fully adjudicate this affirmative defense until some discovery has been undertaken in this case. Further development of the retaliation claims would put this Court in a better position to assess this defense and would provide Defendant Adamik the opportunity to assert this defense on his behalf. WHEREFORE, based on the foregoing, it is hereby
As noted above, the Defendants did not construe the Amended Complaint to have stated a retaliation claim against Defendant Adamik.
RECOMMENDED, that Defendants' Motion to Dismiss (Dkt. No. 20) should be denied in part as to Plaintiff's retaliation claims set forth against Defendants Riddick, Brown, Adamik, and Saxena, and these Defendants should be directed to file a response to Plaintiff's Amendment Complaint; and it is further
RECOMMENDED, that Defendants' Motion to Dismiss be granted in part as to Plaintiff's retaliation claims against Defendant Rosado; and it is further
RECOMMENDED, that Defendants' Motion to Dismiss be granted in part as to all due process claims asserted against Defendants Adamik, Perlman, Rosado, and Malloni; and it is further
RECOMMENDED, that Defendants' Motion to Dismiss be granted in part as to all Eighth Amendment claims asserted against Defendants Cacciotti and Watson; and it is further
RECOMMENDED, that if all the above recommendations are accepted, then Defendants Rosado, Perlman, Malloni, Cacciotti, and Watson be dismissed from this action as all claims against them have been dismissed; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN (10) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b), 6(a), 6(e).
IT IS SO ORDERED.