Opinion
Civil Action No. 9:14-CV-0626 (BKS/DEP)
02-16-2016
ANTONIO McCLEMORE, Plaintiff, v. MAUREEN BOSCO, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: ANTONIO McCLEMORE, Pro Se 01-B-1676 Clinton Correctional Facility P.O. Box 2000 Dannemora, NY 12929 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: CHRISTOPHER W. HALL, ESQ. NICOLE E. HAIMSON, ESQ. Assistant Attorneys General
APPEARANCES: FOR PLAINTIFF: ANTONIO McCLEMORE, Pro Se
01-B-1676
Clinton Correctional Facility
P.O. Box 2000
Dannemora, NY 12929 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: CHRISTOPHER W. HALL, ESQ.
NICOLE E. HAIMSON, ESQ.
Assistant Attorneys General DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Antonio McClemore, a New York State prison inmate, has commenced this action against various individuals pursuant to 42 U.S.C. § 1983, alleging the deprivation of his civil rights. While the claims set forth in plaintiff's complaint were broader, and involved events occurring at another prison facility, his claims have been narrowed as a result of the court's review, pursuant to 28 U.S.C. §§ 1915(e) and 1915A, and now involve only actions taken by persons employed at the Central New York Psychiatric Center ("CNYPC"), where he was confined at the relevant times. Plaintiff's complaint generally alleges that defendants violated his rights under the First Amendment by restricting his communication and retaliating against him, and under the Eighth Amendment by withholding clothing and access to the bathroom, using excessive force against him, and ignoring his medical needs.
Currently pending before the court is a motion brought by the defendants seeking dismissal of plaintiff's remaining claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that the motion be denied. I. BACKGROUND
In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's complaint, Dkt. No. 1, the contents of which have been accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546 (1964). In addition, to the extent they are consistent with the allegations set forth in his complaint, the court's recitation of the facts is also drawn from the materials submitted by plaintiff in opposition to defendants' motion, Dkt. No. 37. Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Hurd, J.).
Plaintiff is a prison inmate currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Dkt. No. 1. Although he is now incarcerated elsewhere, at the times relevant to this action, plaintiff was confined in either the CNYPC, a facility operated by the New York State Office of Mental Health ("OMH") and located in Marcy, New York, or the Great Meadow Correctional Facility, operated by the DOCCS and located in Comstock, New York. See generally id.
On or about July 11, 2011, while a patient in the CNYPC, "plaintiff . . . became a witness to a complaint filed by Security Staff Joseph Hubbert on . . . defendant Kevin Boyer[.]" Dkt. No. 1 at 11. When defendant Boyer learned that McClemore was serving as a witness against him, he allegedly began to harass plaintiff. Id. Among other things, defendant Boyer allegedly attempted to instigate conflicts between plaintiff and other patients and threatened plaintiff with bodily harm "on a daily basis." Id.
Plaintiff was transferred out of the CNYPC and into the Wende Correctional Facility ("Wende") on August 17, 2011. Dkt. No. 1 at 12. On or about September 20, 2011, while at Wende, plaintiff attempted to commit suicide. Id. As a result of the incident, plaintiff was returned to the CNYPC on or about September 23, 2011. Id. at 11-12. Upon his return, plaintiff was housed in "Ward 601," which, according to plaintiff, houses residents requiring discipline or those residents that "staff do[es] not like." Id. at 12-13. Plaintiff alleges that residents housed in Ward 601 are prohibited from (1) wearing shoes; (2) talking to other residents; (3) possessing any additional clothing other than what they are wearing when they arrive; (4) leaving the door to their room open; (5) possessing or requesting a pen, paper, magazine, or book; (6) accessing a telephone; (7) participating in treatment programs or religious services; and (8) leaving their room at any time. Id. at 13-14. CNYPC residents are not permitted any visitors for the first thirty days of their stay, and thereafter are permitted visits only from immediate family. Id. at 19. According to plaintiff, all of these policies were promulgated by defendant Bosco and defendant Corey Connlley, the Chief of Security at the CNYPC. Id. at 9-10. In addition, plaintiff alleges that, while he was housed in Ward 601, he was precluded from using the bathroom as needed and required to sleep on a mattress on the floor. Id. at 18.
Notwithstanding this allegation, plaintiff acknowledges that he was permitted to make a collect call on one occasion. Dkt. No. 1 at 18. Plaintiff acknowledges that he was unable to contact anyone, however, because defendant Maureen Bosco, the Director of the CNYPC, has implemented "outrageous" policies whereby residents can only make collect phone calls for $10.00-$17.00 per connection, plus $1.00 per minute. Id. at 18-19. According to plaintiff, these policies are designed to "deliberately deter patient[']s families from becoming to[o] involved in the treatment and care." Id. at 19. Plaintiff also notes that he was permitted to call his "common law wife" on or about December 12, 2013. Id. at 32-33.
Defendant Michael Sacco, who was assigned as plaintiff's therapist during his confinement in the CNYPC, advised plaintiff that defendant Boyer recommended he be housed in Ward 601 and indicated that plaintiff "had made a[ ]lot of enemies upon his last admission" to the CNYPC. Dkt. No. 1 at 15. Plaintiff's request to be discharged from the CNYPC was denied by defendant Sacco on or about September 27, 2011. Id. at 15-16.
Plaintiff was transferred to Ward 302, another ward within the CNYPC, in early October 2011. Dkt. No. 1 at 17. He was transferred back to Ward 601 on or about October 24, 2011, however, because, according to defendant Sacco and defendant Dr. Berkinhimer, his physician, plaintiff was not eating. Id. at 17-18.
In November 2011, plaintiff was transferred to Ward 201, where defendant Boyer was assigned to work at the time. Dkt. No. 1 at 20-21. Plaintiff alleges that, on or about November 17, 2011, defendant Boyer advised a CNYPC staff member, identified as Mrs. Trudy, that she could not give plaintiff a job at the facility. Id. at 21-22. When plaintiff asked defendant Boyer why he had issued that directive, defendant Boyer responded, "'Because I don't need another niggar [sic] working on my ward.'" Id. at 22. The next day, plaintiff filed a verbal complaint concerning the matter to "the unit chief," submitted a written complaint with "risk management, and wrote letters to the Legal Aid Society, Prisoner's Legal Services, and Quality of Care" regarding defendant Boyer's conduct. Id.
Shortly thereafter, on November 26, 2011, plaintiff was escorted by defendant Boyer and two other security staff members to a side room on Ward 202, which, according to plaintiff "is an isolation area." Dkt. No. 1 at 23. Upon arriving at the room, the two other security staff "left defendant Boyer alone with the plaintiff," and defendant Boyer then "struck the plaintiff with a closed fist, knocking him to the floor." Id. As a result, plaintiff suffered a cut lip and swelling to his face. Id. Immediately after the alleged assault by defendant Boyer, the other two security staff returned to the room and strip-searched plaintiff and then admitted him to Ward 202. Id. Plaintiff alleges all of this conduct was unprovoked, and that defendant Boyer "has a long history of assaulting patients" without disciplinary consequences. Id.
While plaintiff was still housed in Ward 202, defendant Sacco visited him on or about December 13, 2011, to inform him that Quality of Care requested that plaintiff call regarding his complaints. Dkt. No. 1 at 24. Defendant Sacco then allegedly threated to "make the plaintiff's life a living hell" because of the written complaints. Id. at 25. Plaintiff contends that defendants Berkinhimer and Sacco acted "very hostile towards" him on December 19, 2011, due to the grievacnces he had filed and told plaintiff that "if he wanted to kill himself th[e]n he would have his chance for plaintiff would be discharged from the [CNYPC] soon." Id. The next morning, plaintiff was discharged and transferred to Great Meadow. Id.
On January 10, 2012, while housed in a general population cell at Great Meadow, plaintiff again attempted to commit suicide. Dkt. No. 1 at 26-27. After he was examined by medical personnel, plaintiff was housed in the mental health unit strip cell at the direction of defendant Sacco without any clothing, aside from a smock. Id. at 27, 29. According to plaintiff, he was confined in the strip cell for seventy-one days. Id. at 28. He also alleges that, "[i]n the past 26 months, [he] has been kept in a strip cell for about nine of those months." Id. While in the strip cell, plaintiff developed a full-body rash that leaked "a yellowish fluid." Id. Plaintiff also contends that he was not permitted to shower or otherwise clean himself and that he was sexually assaulted by unidentified staff during his stay in the strip cell. Id. After swallowing a twenty-four inch light bulb, wires, batteries, and paper clips, plaintiff alleges he was not provided medical treatment until he "stopped bleeding from [his] rectum." Id. Unidentified mental health staff also allegedly physically assaulted him in retaliation for filing written complaints against them. Id.
Plaintiff was returned to the CNYPC on or about December 9, 2013, and again assigned to Ward 601. Dkt. No. 1 at 31. While plaintiff's mattress in his cell now had a bedframe, the restrictions and conditions described above during his earlier stay remained the same. Dkt. No. 1 at 31. Defendant Berkinhimer visited plaintiff on this date at his cell and placed him on a finger-food diet after determining that plaintiff was suicidal, but did not provide plaintiff medical treatment "for almost two weeks" for the body rash. Id. at 30-31. The next day, defendant Sacco visited plaintiff and acted hostile towards him, stating that he had "no intention[] of doing anything for plaintiff." Id. at 32. In response to a request by plaintiff to speak to Risk Management, defendant Sacco informed him that residents were now required to file a written complaint in order to communicate with Risk Management. Id. Because plaintiff was housed on Ward 601, however, he was prohibited from filing this complaint because of the restrictions on the use and possession of writing materials. Id.
On or about December 17, 2013, plaintiff informed defendant Berkinhimer that "he was hearing voices, having visions and feeling suicidal." Dkt. No. 1 at 33. Plaintiff also indicated that "he was tired of asking the nurse for med[ications] for his depression." Id. Defendant Berkinhimer responded by telling plaintiff he was not going to provide plaintiff with any treatment and had already prescribed plaintiff medication to help him sleep. Id. The next day, plaintiff attempted to kill himself "by sharp[en]ing a spoon handle to a point on both ends, th[e]n swallowing the spoon handle, and a large screw before cutting [his] wrist." Id. at 34.
After receiving medical treatment at an outside hospital following his suicide attempt, plaintiff was returned to the CNYPC on January 3, 2014, housed in an isolation room, and placed on twenty-four hour watch. Dkt. No. 1 at 34. Shortly thereafter, defendant Berkinhimer visited plaintiff and, according to plaintiff, said, "You tried to kill yourself on my ward. I'm going to the team meeting this morning, and we are going to discuss this little tantrum of yours. But I'm telling you right now, I'm moving you to the second floor th[e]n I'm discharging your ass." Id. at 35 (quotation marks omitted). Plaintiff attempted suicide again on or about January 10, 2014. Id. at 36.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about April 28, 2014, with the filing of a complaint and accompanying application to proceed in forma pauperis ("IFP"). Dkt. Nos. 1, 2. Plaintiff's complaint asserts several claims pursuant to 42 U.S.C. § 1983 and names nine defendants, all of whom are individuals employed at the CNYPC, Great Meadow, or the Clinton Correctional Facility. See generally Dkt. No. 1. On January 7, 2015, Chief District Judge Glenn T. Suddaby issued a decision and order, pursuant to 28 U.S.C. §§ 1915(e) and 1915A, granting plaintiff's IFP application and dismissing some of the causes of action asserted against the named defendants. Dkt. No. 13. As a result of that decision, the only viable claims remaining in the action include (1) a First Amendment freedom of speech/association claim asserted against defendants Bosco, Connlley, and Sacco; (2) an Eighth Amendment conditions-of-confinement claim regarding Ward 601 asserted against defendants Bosco, Connlley, and Boyer; (3) an Eighth Amendment conditions-of-confinement regarding Great Meadow asserted against defendant Sacco (4) a First Amendment retaliation claim asserted against defendants Boyer and Sacco; (5) an Eighth Amendment excessive force claim asserted against defendant Boyer; and (6) an Eighth Amendment deliberate medical indifference claim asserted against defendant Berkinhimer. Id.
The remaining defendants have filed a motion seeking dismissal of plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 26. Plaintiff has submitted a response to defendants' motion, and defendants have since submitted a reply to that filing. Dkt. Nos. 37, 39. Defendants' motion, which is now fully briefed, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
Although defendants' motion requests dismissal of plaintiff's complaint in its entirety, it does not address plaintiff's Eighth Amendment excessive force claim asserted against defendant Boyer. See generally Dkt. No. 26-1. Accordingly, while this report and recommendation will address each of the other claims asserted in the complaint, it will not discuss that particular cause of action in light of defendants' failure to place plaintiff on notice that it may be subject to dismissal.
III. DISCUSSION
A. Legal Standard Governing Motions to Dismiss Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading using a standard which, though unexacting in its requirements, "demands more than an unadorned, the- defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, "a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Iqbal, 556 U.S. 677-78 (quoting Fed. R. Civ. P. 8(a)(2)). While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions. See id. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555-56); see also Cooper v. Pate, 378 U.S. 546, 546 (1964); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). The tenet that a court must accept as true all of the allegations contained in a complaint does not apply, however, to legal conclusions. Iqbal, 556 U.S. at 678.
To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge plaintiffs' claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570) (alterations omitted).
When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson, 551 U.S. at 94 ("'[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (citation omitted)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("[W]hen a plaintiff proceeds pro se, a court is obliged to construe his pleadings liberally." (quotation marks and alterations omitted)); Kaminski v. Comm'r of Oneida Cnty. Dep't of Soc. Servs., 804 F. Supp. 2d 100, 104 (N.D.N.Y. 2011) (Hurd, J.) ("A pro se complaint must be read liberally").
B. First Amendment Free Speech/Association
Plaintiff's complaint alleges that defendants Bosco, Connlley, and Sacco violated his rights under the First Amendment by, inter alia, restricting his communication with family and friends while housed in the CNYPC. Dkt. No. 1 at 10, 12, 17.
1. Legal Standard
While inmates confined within prison facilities are by no means entitled to the full gamut of rights guaranteed under the United States Constitution, including the First Amendment, they do retain at least some measure of constitutional protection. A prison inmate's right to freedom of speech, however, is not without limits, and the task of defining the contours of that right in a prison setting requires striking a delicate balance between the rights of prison inmates and the legitimate interests of prison officials tasked with maintaining prison security. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-49 (1987); Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003); Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990).
If a prison regulation or practice "impinges on inmates' constitutional rights, the regulation [or decision] is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987); accord, Beard v. Banks, 548 U.S. 521, 528 (2006). To determine whether a regulation or decision is reasonable, a court must conduct the four-factor analysis articulated in Turner. Turner, 482 U.S. at 89-91; Beard, 548 U.S. at 528; Shakur v. Selsky, 391 F.3d 106, 113 (2004). Specifically, the court asks (1) whether there is "a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it"; (2) whether there are "alternative means of exercising the right that remain open to prison inmates"; (3) "what impact will accommodation of the asserted constitutional right have on guards and other inmates and on the allocation of prison resources generally"; and (4) whether there "are ready alternatives for furthering the governmental interest available[.]" Beard, 548 U.S. at 529 (alterations, quotation marks omitted); accord, Turner, 482 U.S. at 91-93.
2. Analysis
In this case, liberally construed, plaintiff's complaint alleges that defendants Bosco and Connlley deprived him of his right to free speech under the First Amendment by creating policies that restricted all of his outside communication. Dkt. No. 1 at 13-14. Plaintiff's complaint also alleges that defendant Sacco refused to transfer plaintiff out of Ward 601 on or about December 10, 2013, to preclude McClemore from writing any grievances or complaints against him (because residents in Ward 601 are prohibited from writing letters). Id. at 32. While it is true that plaintiff's complaint alleges that he was permitted to make two telephone calls at various times while housed in Ward 601, id. at 18, 32-33, he contends that, on one of those occasions, he could not contact anyone because defendant Bosco has implemented a policy whereby residents can only make collect calls at "outrageous" expenses. Id. at 18-19.
In support of their motion to dismiss, defendants argue that "it is clear that the policies on ward 601 at CNYPC were reasonably related to legitimate penological interests. They were designed to protect Plaintiff, staff and visitors by providing a therapeutic and secure setting." Dkt. No. 26-1 at 8. Importantly, plaintiff's complaint is devoid of any allegations that explain or otherwise justify the policies that restricted his ability to communicate while housed in Ward 601. While defendants' contentions may prove to be true, at this early procedural juncture, the court must restrict its consideration of defendants' motion to the four corners of plaintiff's complaint (and, to the extent they are consistent with the complaint, any materials submitted by plaintiff in response), and accept all allegations as true. Accordingly, defendants' unsupported contention regarding the reasonableness of any policies allegedly implemented by defendants Bosco and Connlley, or perpetuated by defendant Sacco, do not detract from the plausibility of the allegations in the complaint.
In addition, with respect to the second Turner factor, plaintiff's complaint plausibly alleges that there are no alternatives to the policies that he challenges. For instance, he contends that Ward 601 residents are not permitted any visitors for the first thirty days following admission, with no exceptions, and after expiration of that period, residents are permitted visits only from immediate family. Dkt. No. 1 at 19. Plaintiff also alleges that residents are prohibited from talking to one another, possessing any means of written communication, or accessing the telephone. Id. at 13-14. Defendants have offered no reason to believe that plaintiff's descriptions of these policies are inaccurate, or that alternatives to them exist. Finally, at this juncture, there is no indication from plaintiff's complaint or defendants' motion that accommodations to the policies challenged would unreasonably impact the CNYPC or its staff and security.
Accordingly, because I find that plaintiff's complaint plausibly alleges a First Amendment free speech claim, I recommend that defendants' motion be denied as to the First Amendment claims asserted against defendants Bosco, Connlley, and Sacco.
C. First Amendment Retaliation
Plaintiff's complaint also alleges that defendants Boyer and Sacco retaliated against him by, inter alia, punishing and harassing him when he exercised his First Amendment rights by filing complaints against them. Dkt. No. 1 at 11, 12, 24, 25.
1. Legal Standard
A cognizable section 1983 retaliation claim lies when prison officials take adverse action against an inmate that is motivated by the inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment. See Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir. 2000) ("In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws."). To state a prima facie claim under section 1983 for retaliatory conduct, a plaintiff must advance non-conclusory allegations showing that (1) the conduct at issue was constitutionally protected, (2) the defendants took adverse action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse action - in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
For conduct to constitute as adverse for purposes of satisfying this test, it must "deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003). "In order to satisfy the causation requirement, allegations must be sufficient to support the inference that the speech played a substantial part in the adverse action." Davis, 320 F.3d at 354 (quotation marks omitted).
2. Analysis
i. Defendant Boyer
In this case, plaintiff's complaint alleges that because he served as a witness against defendant Boyer, Boyer began "harass[ing him] by trying to start conflicts between other patients and plaintiff, and constantly . . . made threats of bodily harm towards plaintiff." Dkt. No. 1 at 11. At this early juncture, I find that these allegations are sufficient to satisfy each of the elements of a section 1983 retaliation claim. Although it is not clear based on the complaint in what context plaintiff served as "one of the witness[es] against" defendant Boyer, liberally construed, and accepting the allegation as true, I find that it plausibly suggests that plaintiff engaged in protected activity. See, e.g., Vazquez v. Southside United Housing Dev. Fund Corp., No. 06-CV-5997, 2009 WL 2596490, at *12 (E.D.N.Y. Aug. 21, 2009) ("Viewing the facts in the light most favorable to Plaintiff, the court accepts that Plaintiff's testimony is sufficient to show that she engaged in a protected activity by serving as a witness for Bonano."). As for the second element, threats of physical harm have been held to constitute adverse action for purposes of a retaliation claim. See, e.g., Pierce v. Monell, No. 06-CV-1290, 2007 WL 2847317, at *8 (N.D.N.Y. Sept. 26, 2007) (Kahn, J., adopting report and recommendation by Lowe, M.J.) (finding that the alleged death threats made by the defendant to the plaintiff were sufficient at the pleading stage to constitute adverse action for purposes of the plaintiff's retaliation claim). Finally, plaintiff contends that the incident involving defendant Boyer to which plaintiff became a witness occurred on July 11, 2011, and by approximately August 9, 2011, plaintiff requested to be transferred out of the CNYPC to avoid continued conflict with defendant Boyer. Dkt. No.1 at 11. Thus, there are sufficient allegations to suggest that there is close temporal proximity between the protected activity and alleged adverse action, which is sufficient at this stage to satisfy the causal connection requirement of plaintiff's retaliation claim. See, e.g., Petyan v. N.Y. City Law Dep't, (finding that the close temporal proximity of two-and-a-half months between the protected activity and the alleged adverse action "is sufficient circumstantial evidence of causation at the motion to dismiss stage").
Accordingly, for the reasons discussed above, I find that plaintiff's complaint plausibly alleges a First Amendment retaliation claim against defendant Boyer, and therefore recommend that defendants' motion be denied as to that claim.
ii. Defendant Sacco
Plaintiff's complaint also alleges sufficient facts to plausibly suggest that he can satisfy each of the three elements of a retaliation claim against defendant Sacco. In particular, plaintiff alleges that, in retaliation for plaintiff filing complaints with "Quality of Care" regarding the treatment he was receiving at the CNYPC, defendant Sacco threatened to make "plaintiff's life a living hell" and then discharged him from the CNYPC to Great Meadow after telling plaintiff that he would have an opportunity to commit suicide at that facility. Dkt. No. 1 at 24-25. It is well established that the filing of complaints or grievances constitutes protected activity for purposes of a First Amendment retaliation claim. Johnson v. Eggersdorf, 8 F. App'x 140, 144 (2d Cir. 2001); Graham v. R.J. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). In addition, while defendant Sacco's vague threat may not alone be sufficient to constitute adverse action, see, e.g., Mateo v. Fischer, 682 F. Supp. 2d 423, 434 (S.D.N.Y. 2010) ("The opacity of [the defendant]'s threats to [the plaintiff] - that [the plaintiff] should 'wait till he puts his hands on me,' and that 'one day he and I will part' - softens the deterrent effect considerably." (citations omitted)), in this case, when defendant Sacco's comments are considered in conjunction with the allegation that he arranged for the transfer of plaintiff to Great Meadow while aware that he might commit suicide at that facility, I find that plaintiff's complaint alleges facts plausibly suggesting that defendant Sacco engaged in adverse action. See Lunney v. Brureton, No. 04-CV-2438, 2007 WL 1544629, at *23 (S.D.N.Y. May 29, 2007) ("Case law reflects that verbal threats may constitute adverse action, though whether they constitute adverse action seems to depend on their specificity and the context in which they are uttered."). With respect to the causation element of the retaliation claim, plaintiff's complaint unequivocally alleges that defendant Sacco was aware of the fact that plaintiff had filed complaints and threatened to make plaintiff's life difficult on or about December 13, 2011. Dkt. No. 1 at 24. Six days later, defendant Sacco allegedly discharged plaintiff to Great Meadow after telling him "if he wanted to kill himself th[e]n he would have his chance." Id. at 25. Defendant Sacco's awareness of the complaints filed by plaintiff, in conjunction with the close temporal proximity between the date on which it is clear he was aware of the protected activty and his decision to discharge plaintiff are sufficient to plausibly suggest that the complaints motivated defendant Sacco's conduct.
Accordingly, I recommend defendants' motion with respect to plaintiff's retaliation claim against defendant Sacco be denied.
D. Eighth Amendment Conditions-of-Confinement
Plaintiff asserts conditions-of-confinement claims against defendant Sacco based on his confinement in a strip cell at Great Meadow, and against defendants Bosco, Connlley, and Boyer based on the conditions in Ward 601. Dkt. No. 1. at 9-10, 13-14, 18, 27-29.
1. Legal Standard
The Eighth Amendment prohibits punishment that is "incompatible with 'the evolving standards of decency that mark the progress of a maturing society [,], or involve[s] the unnecessary and wanton infliction of pain.'" Estelle, 429 U.S. 102-03 (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) and Gregg v. Georgia, 428 U.S. 153, 169-73 (1976). While the Eighth Amendment does not mandate comfortable prisons, it does not countenance inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832 (1994). There is not a static test to determine whether a deprivation is sufficiently serious to run afoul of the Eighth Amendment; the particular conditions alleged must be evaluated in light of modern standards of decency. Farmer, 511 U.S. at 832. Eighth Amendment conditions-of-confinement claims must meet a subjective and objective requirement. Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). The subjective claim focuses on the defendant's motive for his conduct and the objective on the conduct's effect. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009).
Objectively, the claim must allege that the deprivation the inmate suffered was "sufficiently serious and he was denied the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1996). To meet the objective element, an inmate must show that the conditions, alone or in combination, "posed an unreasonable risk of serious damage to his health." Walker, 717 F.3d, at 125. When an inmate's "basic human needs," such as food, clothing, medical care, and safe and sanitary living conditions are not met, the prison officials violate his constitutional rights. Id.
Subjectively, the plaintiff must show that the defendant imposed the conditions with "deliberate indifference." Wilson v. Seiter, 501 U.S. 294, 297 (1991). The plaintiff must also show that the defendant acted with "more than mere negligence." Farmer, 511 U.S. at 835. Eighth Amendment conditions-of-confinement claims require the plaintiff to name defendants and state their "actual knowledge of the inhuman conditions" to show their personal involvement. Gaston v. Coughlin, 249 F.3d 156, 166 (2d Cir. 2001). The prison officials accused must have known of and disregarded an excessive risk to inmate health or safety. Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012).
2. Analysis
i. Defendant Sacco
Plaintiff alleges that defendant Sacco "told doctors to hold plaintiff in [a] strip cell [at Great Meadow] for months." Dkt. No. 1 at 29. While confined in the strip cell, he allegedly did not have access to any clothes aside from a smock, spent twenty-four hours per day in the cell, and was not permitted to shower. Id. at 28. In addition, plaintiff alleges that he developed a rash, was sexually assaulted by staff, "swallowed [a] 24[-]inch light bulb, wires, batteries and paper clips" and was not provided any medical treatment until "he stopped bleeding from [his] rectum," and was assaulted by staff in retaliation for "writ[ing] complaints on them." Id.
Accepting the above allegations as true, I find that they suffice at this procedural juncture to satisfy the objective element of an Eighth Amendment conditions-of-confinement claim. See, e.g., Inesti v. Hicks, No. 11-CV-2596, 2012 WL 2362626, at *19 (S.D.N.Y. June 22, 2012) (finding the plaintiff's allegations that, inter alia, he spent ninety days in a special housing unit and the defendants "den[ied] him food, and perhaps water, showers, exercise or recreation, medical treatment and mental health treatment" were sufficient to survive the defendants' motion to dismiss). In addition, while I acknowledge that this is less clear, I find that the complaint contains sufficient allegations to plausibly suggest that defendant Sacco acted with the requisite deliberate indifference when allegedly instructing that plaintiff be housed in the strip cell. Plaintiff specifically alleges that someone informed him that defendant Sacco gave the directive for plaintiff to be housed in a strip cell "for months." Dkt. No. 1 at 29. Although there are no allegations to suggest that defendant Sacco worked at Great Meadow or otherwise visited plaintiff while he was confined in the strip cell, which would otherwise suggest that defendant Sacco was aware of the conditions of the strip cell, the court is reminded "that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quotation marks omitted) (emphasis in original). In light of the other allegations regarding defendant Sacco that suggest he acted with reckless disregard to plaintiff's health and safety, including that he arranged for plaintiff's transfer out of the CNYPC and into Great Meadow knowing that he would attempt suicide, I am compelled to conclude that plaintiff's allegation that he was confined in the strip cell at Great Meadow under deplorable conditions "for months" on defendant Sacco's instruction is sufficient to satisfy the subjective element of the Eighth Amendment claim. Whether plaintiff will be able to adduce any evidence of defendant Sacco's alleged reckless disregard for his health and safety sufficient to create an issue of fact on a motion for summary judgment is another question, which I need not, and do not, decide here.
Accordingly, I recommend that defendants' motion to dismiss the conditions-of-confinement claim asserted against defendant Sacco be denied.
ii. Defendants Bosco, Connlley, and Boyer
The plaintiff alleges that, during his confinement in Ward 601 at the CNYPC, he was prohibited from (1) wearing shoes; (2) talking to other residents; (3) possessing any additional clothing other than what they are wearing when they arrive; (4) leaving the door to their room open; (5) possessing or requesting a pen, paper, magazine, or book; (6) accessing a telephone; (7) participating in treatment programs or religious services; and (8) leaving their room at any time. Dkt. No.1 at 13-14. In addition, plaintiff contends that, while he was housed in Ward 601, he was precluded from using the bathroom as needed and required to sleep on a mattress on the floor. Id. at 18. According to plaintiff, the policies governing Ward 601 were promulgated by defendants Bosco and Connlley, and he was housed in that ward at the direction of defendant Boyer. Id. at 9-10, 15.
Considered together, the allegations regarding the conditions of confinement in Ward 601 are sufficient to plausibly suggest that plaintiff's health and safety were at risk. In particular, I am persuaded by the allegations that he was not permitted to use the bathroom as needed, was permitted access only to the clothing he was wearing upon entering the ward, and remained completely isolated during his confinement. Dkt. No. 1 at 13-14, 18. I note, moreover, that plaintiff alleges that he did not have a sink or toilet, and was given only a foam mattress, two sheets, and a blanket. Dkt. No. 37-1 at 18-19. In total, plaintiff spent approximately thirty-two days in Ward 601. See Dkt. No. 1 at 12, 17-18, 20, 31, 33. Although the conditions of plaintiff's confinement in Ward 601 are certainly not the worst an inmate-plaintiff has alleged in support of an Eighth Amendment conditions-of-confinement claim, I find they are sufficient to survive a motion dismiss pursuant to Rule 12(b)(6). See, e.g. Deblasio v. Rock, No. 09-CV-1077, 2011 WL 4478515, at *16 (N.D.N.Y. Sept. 26, 2011) (McAvoy, J.) (finding that if the plaintiff's allegation regarding the denial of access to a bathroom for five hours was credited, a reasonable factfinder could find in favor of the plaintiff on his conditions-of-confinement claim).
Plaintiff arrived at the CNYPC on September 23, 2011, and was housed immediately in Ward 601. Dkt. No. 12. On October 6, 2011, he was transferred to Ward 302. Id. at 17. Plaintiff was transferred back to Ward 601 on October 24, 2011, until he was transferred again on November 1, 2011. Id. at 18, 20. Although plaintiff was transferred out of the CNYPC in December 2011, he arrived back at the CNYPC and was housed in Ward 601 on December 9, 2013. Id. at 25-26, 31. On December 16, 2013, plaintiff was transferred to Ward 501. Id. at 33.
Turning to the subjective element, again, liberally construing and taking into consideration all of the allegations in plaintiff's complaint, I am persuaded that they plausibly suggest that defendants Bosco, Connlley, and Boyer acted with deliberate indifference to plaintiff's health and safety. With respect to defendants Bosco and Connlley, plaintiff alleges that they created and implemented the offending policies, Dkt. No. 1 at 12-13, from which a reasonable inference could be drawn at this early stage that they knew of the risks created by the conditions of Ward 601. As to defendant Boyer, plaintiff alleges that he gave the order to house plaintiff in Ward 601 upon his arrival back at the CNYPC in September 2011. Id. at 15. Accordingly, I find that the complaint contains sufficient allegations to plausibly suggest that defendants Bosco, Connley, and Boyer were at least aware of the conditions in Ward 601. See Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) ("By alleging that prison officials knew that the diet was inadequate and likely to inflict pain and suffering, [the plaintiff] has also sufficiently pleaded the subjective element.").
For all of these reasons, I recommend that defendants' motion to dismiss plaintiff's Eighth Amendment conditions-of-confinement claim regarding the conditions of Ward 601 against defendants Bosco, Connlley, and Boyer be denied.
E. Eighth Amendment Deliberate Medical Indifference
Construed liberally, plaintiff's complaint alleges that defendant Berkinhimer violated his Eighth Amendment rights by failing to treat him for a rash, hearing voices, seeing visions, feeling suicidal, and his suicide attempts. Dkt. No. 1 at 31-34.
1. Legal Standard
As with any other type of Eighth Amendment cause of action, a medical indifference claim alleging that prison officials have violated an inmate's Eighth Amendment rights must satisfy both objective and subjective requirements. Wright, 554 F.3d at 268. To satisfy the objective requirement, the alleged deprivation must be "sufficiently serious." Farmer, 511 U.S. at 844. Factors informing this inquiry include, "whether a reasonable doctor or patient would find it important and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic and substantial pain." Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (quotation marks and alterations omitted). When evaluating the objective element of such a claim, a court should examine the seriousness of the deprivation, and whether the deprivation may cause death, degeneration, or extreme pain. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quotation marks omitted). Importantly, "it's the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes." Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003)
Addressing the objective prong of the governing test, the Second Circuit has said that
[d]etermining whether a deprivation is an objectively serious deprivation entails two inquiries. The first inquiry is whether the prisoner was actually deprived of adequate medical care. As the Supreme Court has noted, the prison official's duty is only to provide reasonable medical care . . . . Second, the objective test asks whether the inadequacy in medical care is sufficiently serious. This inquiry requires the court to examine how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner.Salahuddin, 467 F.3d at 279-80 (citations omitted).
To satisfy the subjective requirement, a plaintiff must demonstrate that the defendant had "the necessary level of culpability, shown by actions characterized by 'wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). "In medical-treatment cases . . ., the official's state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health." Salahuddin, 467 F.3d at 280. "Deliberate indifference," in a constitutional sense, "requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Id. (citing Farmer, 511 U.S. at 837); see also Leach v. Dufrain, 103 F. Supp. 2d 542, 546 (N.D.N.Y. 2000) (Kahn, J.); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J., adopting report and recommendation by Homer, M.J.). "Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law." Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40).
2. Analysis
The allegations in plaintiff's complaint giving rise to this cause of action are as follows. On December 19, 2011, defendants Berkinhimer and Sacco visited with plaintiff while he was housed on Ward 202. Dkt. No. 1 at 25. At that time, the two defendants "acted very hostile towards the plaintiff" and "went on to explain to the plaintiff that if he wanted to kill himself th[e]n he would have his chance for plaintiff would be discharged from the hospital soon." Id. The next morning, plaintiff was transferred to Great Meadow and, on January 10, 2012, attempted suicide while confined in that facility. Id. at 27.
In December 2013, although defendant Berkinhimer placed him on a finger-food diet and restricted his access to sharp objects after determining he was suicidal, defendant did not treat a rash plaintiff had "for almost two weeks." Dkt. No. 1 at 30-32. In addition, on December 17, 2013, defendant Berkinhimer told plaintiff he "just had to deal with [hearing voices, having visions, and feeling suicidal] because he was not going to give the plaintiff any treatment." Id. at 33. Plaintiff alleges that he thereafter told defendant Berkinhimer that he intended to commit suicide again, but Berkinhimer only responded by indicating to plaintiff that he had already prescribed medication to help him sleep. Id. at 33-34.
After plaintiff's next suicide attempt and his subsequent stay in an outside hospital, he returned to the CNYPC and was placed in isolation room on or about January 3, 2014. Id. Defendant Berkinhimer allegedly visited plaintiff in his room the next day and "leaned over the plaintiff stating 'You tried to kill yourself on my ward. I'm going to the team meeting this morning, and we are going to discuss this little tantrum of yours, but I'm telling you right now, I'm moving you to the second floor th[e]n I'm discharging your ass.'" Id. at 35. Plaintiff attempted suicide again on January 10, 2014, apparently while he remained held in the isolation room at the CNYPC. Id. at 36.
Accepting the above-described allegations as true, I find that they are sufficient to satisfy the pleading requirements under Rule 8 and Iqbal. Although a failure to treat a rash is generally not sufficiently serious to give rise to a constitutional medical indifference claim, see, e.g., Lewal v. Wiley, 29 F. App'x 26, 29 (2d Cir. 2002) (finding that the plaintiff did not allege the existence of a serious medical condition when he complained about a persistent rash), plaintiff in this matter contends that his rash "covered his entire body" and was "leaking a yellowish fluid." Dkt. No. 1 at 28. At this early stage, I find that plaintiff's condition, as alleged by him, was sufficiently serious to satisfy the objective element of an Eighth Amendment claim. See Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (finding that a tooth cavity "presents a 'serious medical need'" in light of its inclination to "degenerate with increasingly serious implications if neglected over sufficient time"). Turning to plaintiff's depression and suicidal tendencies, they are, of course, sufficiently serious and the allegations in the complaint plausibly suggest that his condition is chronic and affects his daily existence. See, e.g., Zimmerman v. Burge, No. 06-CV-0176, 2009 WL 9054936, at *6 (N.D.N.Y. Apr. 20, 2009) (Lowe, M.J.) (finding that depression is a sufficiently serious medical condition when it is not self-diagnosed); accord, Barrow v. Buren, No. 12-CV-1268, 2015 WL 417084, at *3 (N.D.N.Y. Jan. 30, 2015) (D'Agostino, J.) (finding that the plaintiff's allegation that he had been diagnosed with "Major Depressive Disorder" was sufficient to satisfy the objective element of a deliberate medical indifference claim). Finally, plaintiff's contentions regarding defendant Berkinhimer's attitude towards plaintiff during his stay at the CNYPC both in 2011 and again in late 2013 - early 2014 plausibly suggest that Berkinhimer acted with deliberate indifference in discharging plaintiff from the CNYPC in 2011 and allegedly failing to provide plaintiff with adequate treatment between December 2013 and January 2014. Accordingly, I recommend that defendants' motion to dismiss plaintiff's deliberate medical indifference claim asserted against defendant Berkinhimer be denied.
IV. SUMMARY AND RECOMMENDATION
Although defendants have sought dismissal of all of plaintiff's remaining claims in this action, I find that the allegations contained in plaintiff's complaint plausibly suggest the existence of cognizable constitutional causes of action. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion to dismiss plaintiff's complaint (Dkt. No. 26) be DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 86 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: February 16, 2016
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge