Opinion
9:12-CV-1071 (BKS/CFH)
01-04-2016
MANUEL NUNEZ, Plaintiff, v. D. DONAHUE, Head Account Clerk; Clinton Correctional Facility, et al., Defendants.
Appearances: Manuel Nunez 97-A-0205 Sing Sing Correctional Facility 354 Hunter Street Ossining, NY 10562 Plaintiff, pro se Christopher W. Hall, AAG Hon. Eric T. Schneiderman Office of New York State Attorney General The Capitol Albany, NY 12224 Attorney for Defendants
Appearances: Manuel Nunez
97-A-0205
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562
Plaintiff, pro se Christopher W. Hall, AAG
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendants Hon. Brenda K. Sannes, U.S. District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Manuel Nunez brought this action under 42 U.S.C. § 1983 alleging that the defendants violated his federal and state constitutional rights while he was incarcerated at Clinton Correctional Facility (Clinton C.F.) and Coxsackie Correctional Facility (Coxsackie C.F.). Dkt. No. 62. On July 10, 2015, defendants filed a motion for summary judgment. Dkt. No. 105. Plaintiff filed his opposition to the motion on August 3, 2015. Dkt. No. 113. Defendants' motion was referred to United States Magistrate Judge Christian F. Hummel who, on November 23, 2015, issued a Report-Recommendation and Order recommending that defendants' motion for summary judgment be granted. Dkt. No. 117. Magistrate Judge Hummel recommended that, in the alternative, if the District Judge concluded that plaintiff exhausted his administrative remedies as to his retaliation claim against defendant Weeks, the retaliation claim should proceed because plaintiff raised a material question of fact whether defendant Weeks retaliated against him for the exercise of his Constitutional rights, and that all other claims should be dismissed. Id., at p. 42.
Plaintiff filed an objection to the Report-Recommendation raising various specific objections and then requesting a de novo review of the parts of the Report-Recommendation to which he had not specifically objected because he objects to "each and every part[]." Dkt. No. 119, p. 14. Plaintiff also sought appointment of counsel. See Dkt. No. 119, p. 14 (seeking appointment of "counsel for a just determination of this case and allow the assign [sic] counsel ample time to review the case and engage in discovery"). Defendants have not responded to Plaintiff's filing, nor have they objected to the Report-Recommendation. For the reasons set forth below, the alternative recommendation in the Report-Recommendation is adopted in its entirety.
II. Background
The Court presumes the parties' familiarity with plaintiff's factual allegations which are thoroughly set forth in the Report-Recommendation. Dkt. No. 117, pp. 4-9. Essentially, plaintiff claims that defendants Donahue and Palmer denied him access to the court when they intentionally lost and/or destroyed an envelope he had addressed to the New York Court of Claims that contained a disbursement request for a $50 court filing fee, which delayed the payment of the filing fee for plaintiff's Court of Claims action, and caused it to be dismissed. Dkt. No. 62, pp. 7-13, 33-36. Plaintiff alleges that defendants Donahue, Lapoint-Kelsh, Koktowski, Garman and Patnode conspired to transfer him from Clinton C.F. to Coxsackie C.F. in retaliation for filing a grievance regarding access to the court. Dkt. No. 62, pp. 36-41. Plaintiff alleges that after he arrived at Coxsackie, and had filed a grievance regarding the retaliatory transfer and conditions at Coxsackie, defendant Weeks interviewed plaintiff regarding the grievance. Dkt. No. 62, p. 18-19, 42. Plaintiff alleges that defendant Weeks advised plaintiff not to write any more grievances and then retaliated against plaintiff by confining him to a cell in the reception area for four days, without recreation time, awaiting his return to Clinton C.F. Dkt. No. 62, pp. 18-20, 41-43.
Plaintiff's objections to the facts in the Report-Recommendation are addressed below.
In the Court of Claims action plaintiff sought to recover monies for a radio/cassette player and other items left in his work space in the tailor shop which had been disposed of during a lockdown at Clinton C.F. Id.
Plaintiff further alleges that upon his return to Clinton C.F., and following his grievance seeking restitution for the transfer, defendants Lacy, Donahue, Kelsh, Facteau, Lilledahl and Miller conspired to retaliate against him for filing a grievance by searching his cell, filing a false misbehavior report and removing him from honor housing. Dkt. No. 62, pp. 44-49, 52-55. Plaintiff alleges that defendant Miller violated his due process rights by depriving him of a fair hearing on the false misbehavior report. Dkt. No. 49-51. Finally, Plaintiff alleges supervisory liability claims against defendants Bellamy, Lacy, LaValley, Patnode and Proulx for failure to remedy the alleged constitutional violations. Dkt. No. 62, pp. 55-62.
III. Standard of Review
The Court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Id. Properly raised objections must be "clearly aimed at particular findings" in the Report. Vlad-Berindan v. MTA N.Y.C. Transit, No. 14 Civ. 675 (RJS), 2014 WL 6982929, at *1, 2014 U.S. Dist. LEXIS 170985, at *3 (S.D.N.Y. Dec. 9, 2014); Petersen, 2 F. Supp. 3d at 228. When a party files "merely perfunctory responses," attempting to "engage the district court in a rehashing of the same arguments set forth in the original petition," the report will be reviewed for clear error only. Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006). The Court accordingly rejects plaintiff's request for de novo review of those aspects of the Report-Recommendation for which plaintiff failed to preserve a proper objection.
This unpublished decision is attached.
IV. Discussion
A. Factual Objections
The Court has reviewed all of plaintiff's specific factual objections de novo. Based upon the evidence in the record, the Court credits the following objections and finds as follows. The lost or destroyed envelope which Plaintiff gave to defendant Palmer was, as Plaintiff asserts, addressed to the Court of Claims, not the business office at Clinton C.F. (The envelope had to go to the business office before mailing, for the insertion of a $50 check for the court filing fee.) See Dkt. No. 119, p. 2; Dkt. No. 117, p. 5. Plaintiff correctly notes that upon his return to Clinton C.F., he did not receive payment for his television or for pain, he sought payment for the television and for pain. See Dkt. No. 117, p. 8; Dkt. No. 119, p. 3; Dkt. No. 105-2, p. 102-03; Dkt. No. 62-9, p. 33, 43.
The Court rejects Plaintiff's factual objections as follows. The Transfer Review Form signed by defendants Julie Lapoint-Kelsh and K. Koktowski expressly states that Plaintiff's "preference is to remain at Clinton." Dkt No. 62-6; see Dkt. No. 117, p. 6; Dkt. No. 119, p. 2. The property claim filed by Plaintiff on December 21, 2010 (Claim No. 020-0210-10) expressly states that defendant Donahue disapproved it on the grounds that "staff followed proper procedures while packing claimants['] property for transfer to Coxsackie. C.F." Dkt. No. 62-10, p. 5; See Dkt. No. 117, p. 9; Dkt, No., 119, p. 4.
After considering the remainder of Plaintiff's factual objections, the Court has found them to be factually unsupported and/or irrelevant to the legal issues before the Court. With the minor exceptions set forth above, the Court therefore adopts and incorporates into this decision the thorough recitation of facts set forth in the Report-Recommendation.
B. Failure to Exhaust Administrative Remedies
In the motion for summary judgment defendant Weeks argued that plaintiff failed to exhaust his administrative remedies for his claim that defendant Weeks placed plaintiff in keep lock for four days, without recreation time, in retaliation for plaintiff's filing of a grievance. Dkt. No. 105-3, p. 11. Defendant Weeks argued that plaintiff had failed to exhaust this claim because plaintiff "admitted [during his deposition] he failed to file a grievance that concerned Lt. Week's putting him in the cell." Dkt. No. 105-3, p. 11. Defendant Weeks also argued that "to the extent he may have earlier raised a complaint about Lt. Weeks in his grievance, plaintiff abandoned it in his CORC appeal." Id. at p. 12.
After reviewing the grievance, and plaintiff's deposition testimony regarding that grievance, Magistrate Judge Hummel concluded that plaintiff failed to exhaust his administrative remedies regarding his retaliatory keep lock claim. Dkt. No. 117, p. 21. Magistrate Judge Hummel noted that the grievance did not identify the person responsible for the four-day confinement and "[n]othing in the grievance could reasonably have led prison authorities to conclude that [plaintiff] was making an allegation against Weeks for retaliation related to his four-day confinement in the reception area pending transfer." Id. In the alternative, Magistrate Judge Hummel recommended that if the Court concluded that plaintiff did exhaust this claim, the claim should proceed because plaintiff has raised a material issue of fact with respect to whether his confinement was retaliatory. Id. at 21-23.
Plaintiff objects to the recommended conclusion that he failed to exhaust administrative remedies. Dkt. No. 119, p. 6. Plaintiff argues that his December 2010 grievance "placed NYSDOCCS on notice and gave specific dates and named Lt. Weeks. [sic] The only person responsible for placing the Plaintiff in the reception area and kept locked in a cell without recreation (24 hours a day)." Id. Plaintiff notes that Weeks was the "only person with the motive," after having threatened Plaintiff. Id. In light of the liberal standard for grievance pleading, the Court finds that plaintiff exhausted his administrative remedies regarding his claim of retaliation by defendant Weeks.
1. Facts
The grievance which referenced defendant Weeks is plaintiff's December 10, 2010 grievance (CL-60526-10). In that grievance plaintiff sought restitution for the allegedly retaliatory transfer to Coxsackie. See Dkt. No. 62-9, p. 3 (grievance captioned "to seek restitution for a transfer"). Plaintiff sought expenses he had incurred as a result of the transfer, for mailing home personal property that was not permitted at Coxsackie C.F., as well as damages for having been confined in keep lock for four days, pending transfer back to Clinton C.F., without a daily one-hour recreation. Id. at p. 5, 9. In his grievance plaintiff described his interview by Lt. Weeks and subsequent keep lock at Coxsackie as follows. Plaintiff stated that on November 10, 2010, Lt. Weeks interviewed him about a November grievance plaintiff had filed while at Coxsackie; advised plaintiff not to file any more grievances; and that the interview and advice were "nothing but intimidation tactics." Dkt. No. 62-9, p. 5. Plaintiff stated that two days after this interview he "was moved to the reception division" and "kept locked in a cell" for four days "without at least a daily one hour recreation supposedly because I was 'pending transfer,' which made no sense to me because even S.H.U. prisoners are allow [sic] one hour of recreation per day." Id. In the "action requested" conclusion of his December grievance, plaintiff sought, inter alia, compensation for humiliation, degradation and pain "suffered on my wrists and ankles [from shackles used during the transfer] and the four days I spend [sic] locked in a cell at Coxsackie C.F. 'pending transfer.'" Id. at p. 9. Plaintiff did not identify defendant Weeks as the person who caused plaintiff to be keep locked. Id., at p. 5.
In his November 2010 grievance (CX-16173-010), plaintiff complained about Clinton C.F.'s allegedly retaliatory transfer as well as the conditions at Coxsackie. Dkt. No. 62-8, p. 3. Plaintiff stated that the Coxsackie officials wrote "creating a disturbance" misbehavior reports against inmates who spoke in their cell in a normal tone of voice; that officials knowingly permitted the yard telephones to be controlled by gangs; and that several prisoners told Plaintiff that inmates who write grievances are sent to "the box," based on false misbehavior reports, or are assaulted by staff. Id. at pp 5-7. Plaintiff sought to be transferred back to Clinton C.F. and also asked "[t]hat Coxsackie Corr. Fac. Administration tell their staffs to stop their intimidation tactics and stop retaliating against prisoners for speaking up on any wrong that they witness or are a victim of." Id., at pp. 8-9.
When the question of Weeks' involvement was raised during plaintiff's deposition, plaintiff testified that Lt. Weeks "had me moved to the reception area and kept me locked in a cell for several days without recreation." Dkt. No. 105-2, p. 84. When he was asked how he knew that it was Lt. Weeks, plaintiff initially said that Lt. Weeks "most likely approved it," but that plaintiff "don't have any paperwork, didn't grieve that." Id. When plaintiff was then asked whether Lt. Weeks said that he was going to have plaintiff moved to the reception area, plaintiff testified, "Yes. . . . He said you're going to be transferred to Clinton Correctional Facility soon -- . . . because your transfer's been approved, and I will have you put in the reception area." Id. at pp. 84-85. --------
The Inmate Grievance Resolution Committee (IGRC) and the Superintendent responded to the December grievance, addressing plaintiff's claim for monetary restitution as a result of the transfer, without otherwise addressing the allegation regarding keep lock at Coxsackie C.F. Dkt. No. 62-9, pp. 31-32; see Dkt. No. 62-9, p. 31 (IGRC advising plaintiff "that the inmate grievance program is not the appropriate mechanism to utilize to obtain monetary restitution"). After the Superintendent found no evidence to substantiate plaintiff's claim that the transfer to Coxsackie was retaliatory and denied his "action for payment of pain," plaintiff appealed to the Central Office Review Committee (CORC). Dkt. No. 62-9, p. 35. While plaintiff did not raise the issue of retaliatory keep lock in his appeal, plaintiff did argue that "the Superintendent's response doesn't even addressed [sic] all the other issues or actions requested by grievant." Dkt. No. 62-9, p. 36. CORC upheld the Superintendent's decision on the grievance, concluding that plaintiff was transferred to Coxsackie in error, not for retaliatory reasons, that plaintiff was not entitled to reimbursement for property he had to mail home and that "money damages are not an available remedy through the inmate grievance program." Dkt. No. 62-9, p. 43.
2. Analysis
As Magistrate Judge Hummel noted in his Report-Recommendation, to exhaust his claims plaintiff was required to provide "a specific description of the problem." Dkt. No. 117, p. 19; Espinal v. Goord, 558 F.3d 119, 127 (2d Cir. 2009). While a plaintiff is not required to identify the person responsible for the alleged misconduct, he has to "provide enough information about the conduct . . . to allow prison officials to take appropriate responsive measures." Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004); see Espinal, 558 F.3d at 127. The Second Circuit has analogized the test for the sufficiency of an administrative grievance to that for notice pleading, explaining that: "as in a notice pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming." Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)) (internal marks and quotations omitted). While "a liberal grievance pleading standard" applies to pro se inmates, "the grievance may not be so vague as to preclude prison officials from taking appropriate measures to resolve the complaint internally." Brownell, 446 F.3d at 310.
Here, plaintiff complained about being in keep lock for four days, without any time out for recreation, after Lt. Weeks intimidated him about a grievance that he had filed. Plaintiff, however, did not specifically allege that defendant Weeks was the person responsible for putting him in keep lock or that his keep lock was in retaliation for having filed a grievance; the grievance sought, and was interpreted by prison officials, as a claim for monetary restitution; and plaintiff testified in this action that he did not grieve defendant Weeks' retaliatory keep lock. Although it is a close question, given the liberal pleading standard applicable to pro se grievances, the Court finds that plaintiff's grievance was sufficient to exhaust his retaliation claim against defendant Weeks because it was sufficient to alert prison officials to his claim of retaliatory keep lock. The grievance described the specific dates and location of the incident, and plaintiff sought damages for having been in keep lock. Although plaintiff did not allege that his keep lock was retaliatory, the facts alleged in the grievance, when fairly read, suggest that the keep lock was retaliatory. Plaintiff's allegations that Lt. Weeks engaged in "intimidation tactics" regarding plaintiff's grievance, that plaintiff was moved to keep lock two days later, and that four days of keep lock without recreation "supposedly because I was 'pending transfer' . . . made no sense . . . because even S.H.U. prisoners are allow [sic] one hour of recreation" suggest that the placement in keep lock was retaliatory. Dkt No. 62-9, p. 5. See, e.g., Varela v. Damon, 491 F.Supp. 2d 442, 448 (S.D.N.Y. 2007) (finding grievance sufficient to exhaust retaliation claim when it did "not use word 'retaliation' . . . but fairly read . . . does suggest that the assault occurred in response" to the plaintiff's complaint); c.f. Brownell, 446 F.3d at 311 (grievance seeking damages for property lost during the plaintiff's transfer between institutions, which did not contain any allegations of misconduct by corrections officers, and was treated "merely as a request for lost property" was insufficient to exhaust the plaintiff's claim that officials intentionally lost legal documents, denying his access to courts).
C. Other Objections
After reviewing plaintiff's remaining objections to the legal analysis in the Report-Recommendations de novo, the Court rejects plaintiff's objections. With respect to the allegedly retaliatory misbehavior report by defendant Lilledahl, plaintiff has failed to come forward with any evidence of retaliatory animus by defendant Lilledahl. See Dkt. No. 117, pp. 26-27; Dkt. No. 119, pp. 6-7. Plaintiff has similarly failed to come forward with any evidence of retaliatory animus by defendant Miller. See Dkt. No. 117, p. 28; Dkt. No. 119, pp. 8-9. The hearing conducted by defendant Miller does not, as plaintiff asserts, demonstrate his retaliatory animus. See. Dkt. No. 62-11, p. 41. Lt. Miller found plaintiff guilty of only one of the three charges against him - possession of the contraband television. Id. at pp. 42, 46. While plaintiff did, during the disciplinary hearing, tell Lt. Miller that plaintiff "wrote a grievance" on December 14 "because they transferred me out of a [sic] to Coxsackie Correctional Facility because I was going to file a lawsuit over here and then they transfer me back . . . over here," Dkt. No. 62-11, p. 44, Lt. Miller responded that this had "nothing to do with the t.v. that was found in your cell." The evidence, even when viewed in the light most favorable to plaintiff, indicates that during the hearing Lt. Miller was focused on the television found in plaintiff's cell and whether plaintiff had witnesses who could provide evidence regarding that charge. Id. at pp. 43-46. The Court rejects plaintiff's arguments regarding his removal from honor housing by Lt. Miller for the reasons stated in the Report-Recommendation. Dkt. No. 119, pp. 8-9; Dkt. No. 117, pp. 27-29.
With respect to defendant Donahue, plaintiff is correct that his December 10, 2010 grievance, appears to have been attached to the December 21, 2010 inmate claim received by Donahue, and that the December 10, 2010 grievance mentions the November 2010 grievance. Dkt. No. 119, p. 9; see Dkt Nos. 62-10, 62-9. However, as Magistrate Judge Hummel noted in the Report-Recommendation, plaintiff has failed to come forward with evidence that Donahue was personally involved in any of the allegedly unconstitutional acts. Dkt. No. 117, pp. 29-30. Finally, the Court rejects plaintiff's arguments regarding the alleged denial of due process, supervisory liability and the state law claims for the reasons stated in the Report-Recommendation. Dkt. No. 119, p. 9-14; Dkt No. 30-43.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Hummel's alternative recommendation, in the Report-Recommendation (Dkt. No. 117), that Defendants' motion for summary judgment dismissing the retaliation claim against Defendant Weeks be denied, and the motion otherwise be granted, is adopted in all respects; and it is further
ORDERED that Defendants' motion for summary judgment (Dkt. No. 105) is DENIED in part and GRANTED in part, and it is further
ORDERED that Defendants' motion for summary judgment (Dkt. No. 105) is DENIED as to Plaintiff's retaliation claim against defendant Weeks, and it is further
ORDERED that Defendants' motion for summary judgment (Dkt. No. 105) is otherwise GRANTED, and it is further
ORDERED that Plaintiff's request for counsel is GRANTED in part, and that counsel be appointed for the purpose of trial only, and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Dated: January 4, 2016
/s/ _________
Brenda K. Sannes
U.S. District Judge