Opinion
9:22-CV-0362 (AMN/ML)
05-30-2023
MICHAEL TONY VELEZ, Plaintiff, v. COLLADO, individually and official capacity as Superintendent; S. DEVILYN-VARIN; JOHN and JANE DOE individually and their official capacity as RN's; BODROGI, individually and their official capacity as MD's; JOHN and JANE DOE individually and their official capacity as MD's; and MORLEY, individually and official capacity as MD, Defendants.
Michael Tony Velez Pro Se Plaintiff Clinton Correctional Facility LETITIA A. JAMES MARK J. DOLAN, ESQ. Attorney General for the State of New York Assistant Attorney General Counsel for Defendants Collado, Devlin-Varin, Bodrogi, and Morley The Capitol
Michael Tony Velez Pro Se Plaintiff Clinton Correctional Facility
LETITIA A. JAMES MARK J. DOLAN, ESQ. Attorney General for the State of New York Assistant Attorney General Counsel for Defendants Collado, Devlin-Varin, Bodrogi, and Morley The Capitol
REPORT AND RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
Currently before the Court, in this civil rights action filed by Michael Tony Velez (“Plaintiff”) against Collado, S. Devlin-Varin, John and Jane Doe (as RNs), Bodrogi, John and Jane Doe (as MDs), and Morley (collectively “Defendants”), is Defendants Collado, Devlin-Varin, Bodrogi, and Morley's (collectively “Named Defendants”) motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 19.) For the reasons set forth below, I recommend that Named Defendants' motion be granted in part and denied in part.
In Named Defendants' motion to dismiss (Dkt. No. 19, Attach. 1) counsel indicates that defendant referred to by Plaintiff as “S. Devilyn-Varin” is actually “S. Devlin-Varin.” As a result, the Clerk of the Court is directed to amend the docket sheet accordingly. Any reference in the Complaint (Dkt. No. 1) to “S. Devilyn-Varin” shall be deemed to refer to “S. Devlin-Varin.”
I. RELEVANT BACKGROUND
A. Procedural History
On March 23, 2022, Plaintiff commenced this action by the filing of a Complaint, accompanied by a motion for leave to proceed in forma pauperis (“IFP”) in the District Court for the Southern District of New York. (Dkt. Nos. 1, 2.) On March 29, 2022, Chief United States District Judge Laura Taylor Swain granted Plaintiff's IFP application. (Dkt. No. 4.) On April 12, 2022, Chief Judge Swain transferred this action to the District Court for the Northern District of New York. (Dkt. No. 5.)
On July 22, 2022, Senior United States District Judge Lawrence E. Kahn reviewed Plaintiff's Complaint pursuant to 28 U.S.C. §§ 1915, 1915A. (Dkt. No. 9.) Judge Kahn ordered that a response was required to the following three claims: (1) a claim that Plaintiff's right to free exercise was violated by Defendant Collado pursuant to the First Amendment and 42 U.S.C. § 1983; (2) a claim of retaliation against Defendants Collado and Devlin-Varin pursuant to the First Amendment and 42 U.S.C. § 1983; and (3) a conditions-of-confinement claim against Defendants Devlin-Varin, Nurse John Doe, Nurse Jane Doe, Bodrogi, Morely, Dr. John Doe, and Dr. Jane Doe, in violation of the Eighth Amendment and 42 U.S.C. § 1983. (Id.) Judge Kahn dismissed all of the other claims included in the Complaint. (Id.)
In lieu of an answer, Named Defendants filed the pending motion to dismiss for failure to state a claim upon which a relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 19.)
B. The Complaint
Judge Kahn thoroughly outlined the allegations contained in the Complaint as they relate to Plaintiff's surviving clams. (See generally Dkt. No. 9.) For a complete summary of Plaintiff's claims and allegations, reference is made to Judge Kahn's Decision and Order. (Dkt. No. 9 at 38.)
C. Parties' Briefing on Named Defendants' Motion to Dismiss
1. Named Defendants' Memorandum of Law
Generally, in support of their motion to dismiss, Named Defendants assert the following three arguments: (1) Plaintiff's First Amendment free exercise claim against Defendant Collado fails because the Complaint does not allege facts plausibly suggesting (a) Defendant Collado's personal involvement in any purported deprivation of Plaintiff's free exercise rights, and (b) that Plaintiff follows the Jewish faith, that attending Jewish services is required by any sincerely held belief he has, that Plaintiff has participated in Jewish services in the past, or that Plaintiff has had any past contact with the Rabbi for the facility; (2) Plaintiff's First Amendment retaliation claim against Defendants Collado and Devlin-Varin fails because the Complaint does not allege facts plausibly suggesting (a) an adverse action, and (b) a causal connection between Plaintiff's protected conduct and the alleged adverse actions; and (3) Plaintiff's Eighth Amendment conditions of confinement claim against Defendants Devlin-Varin, Bodrogi, and Morley fails because placing an incarcerated person under observation for a potential TB infection is a reasonable response and thus, the Complaint does not allege facts plausibly suggesting the objective or subjective prongs of such a claim. (See generally Dkt. No. 19, Attach. 1.)
2. Plaintiff's Opposition
Generally, in opposition to Named Defendants' motion, Plaintiff argues that (1) Named Defendants' motion does not contain an affidavit or affirmation in support of the notice of motion, and thus should not be considered; (2) the facts of the Complaint are reiterated and Plaintiff does not “relinquish [his] constitutional right[s]”; and (3) Named Defendants seek to mislead the Court on the facts and merits of Plaintiff's constitutional claims and violated his rights to the practice of his Jewish faith. (Dkt. No. 22.)
3. Named Defendants' Reply Letter
In the future, counsel is cautioned to comply with Local Rule 7.1(b)(1), which provides that “[a]ll memoranda of law shall contain a table of contents.”
Generally, in their reply, Named Defendants argue that: (1) Plaintiff's opposition was filed with the Clerk of the Court three days after the deadline and request that their late reply be accepted based on a change in counsel for Named Defendants; and (2) Plaintiff's opposition contains no allegations or legal authority which overcome the dispositive arguments set forth by Named Defendants in their memorandum of law or otherwise would warrant a response. (Dkt. No. 24.)
II. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM
It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6), can be based on one or both of two grounds: (1) a challenge to the “sufficiency of the pleading” under Fed.R.Civ.P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F.Supp.2d 204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground, a few words regarding that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). In the Court's view, this tension between permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed.R.Civ.P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain” pleading standard under Fed.R.Civ.P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described “showing,” the pleading standard under Fed.R.Civ.P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Jackson, 549 F.Supp.2d at 212, n.17 (citing Supreme Court cases) (emphasis added).
Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v. Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (McAvoy, C.J.).
The Supreme Court has explained that such fair notice has the important purpose of “enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision on the merits” by the court. Jackson, 549 F.Supp.2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F.Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal” notice pleading standard “has its limits.” 2 Moore's Federal Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F.Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007). In doing so, the Court “retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 127 S.Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the pleading must contain at least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense....[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks and citations omitted]. However, while the plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully,” id., it “does not impose a probability requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citations omitted).
However, “in a pro se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings drafted by lawyers.'” Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2003) (Sharpe, M.J.) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to “‘make reasonable allowances to protect Pro Se litigants'” from inadvertently forfeiting legal rights merely because they lack a legal education. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As a result, Twombly and Iqbal notwithstanding, the court must continue to “construe [a complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests.” Weixel v. Bd. of Educ., 287 F.3d 139, 146 (2d Cir. 2002).
III. ANALYSIS
A. Whether Plaintiff Sufficiently Alleged a First Amendment Free Exercise Claim Against Defendant Collado
After carefully considering the matter, I answer this question in the negative for the reasons set forth below.
“Prisoners have long been understood to retain some measure of their rights under the Free Exercise Clause.” Brandon v. Kinter, 938 F.3d 21, 32 (2d Cir. 2019) (cleaned up). To state a First Amendment free exercise claim upon which relief may be granted, an inmate “must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs.” Holland v. Goord, 758 F.3d 215, 220 (2d Cir. 2014). “Determining whether a plaintiff's free exercise rights have been substantially burdened ‘requires courts to distinguish important from unimportant religious beliefs, a task for which . . . courts are particularly ill-suited.'” Brandon, 938 F.3d at 32 (quoting Ford v. McGinnis, 352 F.3d 582, 593 (2d Cir. 2003)). Therefore, courts in the Second Circuit should be “wary of making ‘conclusory judgments about the unimportance of the religious practice to the adherent.'” Id. (quoting Ford, 352 F.3d at 593). While certain “belief[s] or practice[s]” may be “so peripheral to the plaintiff's religion that any burden can be aptly characterized as constitutionally de minimis,” Ford, 352 F.3d at 593, establishing a substantial burden is “not a particularly onerous task,” McEachin v. McGuinnis, 357 F.3d 197, 202 (2d Cir. 2004). For instance, a “relatively small number of violative incidents” should “not prevent” a court “from finding that the prisoner's religious beliefs were substantially burdened.” Brandon, 938 F.3d at 35.
It remains unclear whether the substantial burden requirement for proving a free exercise violation under the First Amendment remains good law. In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court “took issue with the premise that courts can differentiate between substantial and insubstantial burdens.” Ford v. McGinnis, 352 F.3d 582, 582 (2d Cir. 2003) (citing Smith, 494 U.S. at 887). Other circuits have disagreed over whether the substantial burden test continues to apply to free exercise claims. Compare Williams v. Morton, 343 F.3d 212, 217 (3d Cri. 2003) (finding “no support for” defendants' argument that it is “a prerequisite. for the inmate to establish that the challenged prison policy ‘substantially burdens' his or her religious beliefs”), with Levitan v. Ashcroft, 281 F.3d 1313, 1320-21 (D.C. Cir. 2002) (requiring prisoners demonstrate that free exercise of religion be substantially burdened). This Court proceeds on the assumption that the substantial burden requirement applies, in part because establishing a substantial burden is “not a particularly onerous task,” McEachin v. McGuinnis, 357 F.3d 197, 202 (2d Cir. 2004).
As set forth by Named Defendants in their memorandum of law, the Complaint fails to allege facts plausibly suggesting that Plaintiff held any sincere religious beliefs. Although the Second Circuit has made clear that “establishing a substantial burden is ‘not a particularly onerous task,'” Brandon, 938 F.3d at 32 (quoting McEachin, 357 F.3d at 202), Plaintiff has entirely failed to allege that his religious beliefs are sincerely held. See Farid v. Smith, 850 F.2d 917, 926 (2d Cir. 1988) (“Because [the plaintiff] has neither alleged nor submitted any proof that he sincerely holds to any religious belief that mandates the use of Tarot cards, we conclude that summary judgment was appropriate on the free exercise claim.”); Gambino v. Payne, 12-CV- 0824, 2013 WL 1337319, at *8 (W.D.N.Y. Mar. 29, 2013) (noting that the “complaint is devoid of any allegations that would establish that [the plaintiff] has a sincerely held religious belief”). Although the Complaint alleges that Plaintiff was “not allowed” to attend Jewish services (Dkt. No. 2 at 33) and was “denied” Kosher meals (Dkt. No. 2 at 9), it does not allege that he previously attended Jewish services, ate Kosher meals, or forewent eating non-Kosher meals. See cf. Ackridge v. Aramark Corr. Food Servs., 16-CV-6301, 2018 WL 1626175, at *18 (S.D.N.Y. Mar. 30, 2018) (citing Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999)) (holding that although “Plaintiff has not explicitly plead[ed] that his religious beliefs are ‘sincerely held,' he has alleged that he listed his religious preference as Jewish, participated in the kosher meal program when he was previously incarcerated, and chose not to eat the non-kosher food ....The Second Circuit has found similar allegations sufficient to plea this element.”). As a result, I recommend that Plaintiff's Free Exercise claim pursuant to the First Amendment against Defendant Collado be dismissed for failure to state a claim upon which relief may be granted.
To the extent that Named Defendants argue that the Complaint fails to allege the personal involvement of Defendant Collado, I find that argument unpersuasive. (Dkt. No. 19, Attach. 1 at 7-8.) The attachments to the Complaint allege that Defendant “Collado would not allow [Plaintiff] to attend any Jewish services and has refused to answer [his] grievance appeal related to this denial.” (Dkt. No. 2 at 33.) Moreover, the attachments allege that Defendant Collado “would not allow [Plaintiff] or any other Jew in B-1 to attend Jewish services and she does not allow Shabos services and makes it clear she is C[]atholic, and they are the only ones she goes out of her way for.” (Dkt. No. 2 at 45.) I find that these allegations plausibly suggest Defendant Collado's personal involvement.
B. Whether Plaintiff Alleged Facts Plausibly Suggesting a First Amendment Retaliation Claim Against Defendants Collado and Devlin-Varin
After carefully considering the matter, I answer this question in the affirmative.
To state a prima facie claim pursuant to 42 U.S.C. § 1983 for retaliatory conduct, a plaintiff must advance non-conclusory allegations establishing that (1) the conduct at issue was 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.).
1. Defendant Collado
Although Named Defendants' motion appears to challenge only the second and third elements of Plaintiff's retaliation claim, I find that the Complaint plausibly alleges the first element, that Plaintiff has engaged in protected activity. The Complaint alleges that on January 1, 2020, Plaintiff suffered a medical emergency but refused medical treatment at an outside hospital. (Dkt. No. 2 at 61-63.) The right to refuse medical treatment is protected speech or conduct. Simmons v. Lantz, 04-CV-2180, 2007 WL 842008, at *2 (D. Conn. Mar. 12, 2007) (citing Pabon v. Wright, 459 F.3d 241, 246 (2d Cir. 2006)).
With respect to the adverse action element, the Complaint alleges that after Plaintiff refused to be transported to an outside hospital, a sergeant directed that Plaintiff's cell be searched and commanded the searching officers to “find something.” (Dkt. No. 2 at 61-67.) The Complaint alleges that the officers fabricated charges from the cell search and Plaintiff was placed in keeplock for approximately thirty-three days. (Id.) “Confining a prisoner to keeplock is sufficient to establish an adverse action.” Gunn v. Malani, 20-CV-2681, 2023 WL 2664805, at *7 (S.D.N.Y. Mar. 28, 2023) (citing Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (finding that a “sentence of three weeks in keeplock” constituted an adverse action); Mack v. Hall, 18-CV-0875, 2020 WL 5793438, at *8 (N.D.N.Y. July 27, 2020) (Hummel, M.J.) (“The Second Circuit has held that being placed in keeplock or otherwise confined is an adverse action.”), report and recommendation adopted, 2020 WL 5775205 (N.D.N.Y. Sept. 28, 2020) (Sharpe, J.); Marshall v. Griffin, 18-CV-6673, 2020 WL 1244367, at *6 (S.D.N.Y. Mar. 16, 2020) (“[i]t is plausible for keeplock confinement to constitute an adverse action for claims of retaliation.”).
With respect to the third element, drawing all inferences in Plaintiff's favor, I find that he has satisfied the causation prong. To show causation, the allegations must be “sufficient to support the inference that the speech played a substantial part in the adverse action.” Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000) (omitting internal quotation). Factors considered in evaluating whether causation existed include: “(1) the temporal proximity of the filing to the grievance and the disciplinary action; (2) the inmate's prior good disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant regarding his motive for disciplining the plaintiff.” Thomas v. DeCastro, 14-CV-6409, 2019 WL 1428365, at *9 (S.D.N.Y. Mar. 29, 2019) (citation omitted).
The Complaint alleges that on February 3, 2020, Defendant Collado came to Plaintiff's keeplock cell and stated “we are done with you, your [sic] out.” (Dkt. No. 2 at 33.) Plaintiff also alleges that before the incidents described in the Complaint, approximately five years had elapsed without receiving a misbehavior report. (Dkt. No. 2 at 5.) Further, the keeplock confinement followed close in time to Plaintiff engaging in the protected activity, which supports an inference of a causal connection. See Johnson v. Morton, 21-CV-0986, 2022 WL 1556404 at *5 (S.D.N.Y. May 17, 2022) (citing Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009)) (holding that the “adverse action was taken against [the plaintiff] the same day he engaged in constitutionally protected activity, which is sufficient for the Court to infer a causal connection”); see also Fabrizio v. Rielly, 20-CV-0011, 2022 WL 18402299, at *10 (N.D.N.Y. Dec. 15, 2022) (Lovric, M.J.) (quoting Espinal, 558 F.3d at 129) (“The Second Circuit has held that the passage of ‘only six months' is sufficient to support an inference of a causal connection.”), report and recommendation adopted, 2023 WL 356204 (N.D.N.Y. Jan. 23, 2023) (Suddaby, J.).
“Although there is significant case law to support the contention that temporal proximity alone is insufficient to survive a motion for summary judgment, the same is not true at the motion to dismiss stage.” Hendricks v. Mallozzi, 20-CV-1035, 2022 WL 1129887, at *5 (N.D.N.Y. Jan. 14, 2022) (Lovric, M.J.) (citations omitted), report and recommendation adopted by, 2022 WL 856885 (N.D.N.Y. Mar. 23, 2022) (D'Agostino, J.). The undersigned rejects Named Defendants' assertion that “[t]emporal proximity alone is insufficient to plead causation.” Hendricks, 2022 WL 1129887, at *5 (rejecting that contention and analyzing the case law upon which Named Defendants' rest their argument).
As a result, I find that Plaintiff has alleged facts plausibly suggesting the elements for a retaliation claim against Defendant Collado and recommend that Named Defendants' motion to dismiss this claim be denied.
2. Defendant Devlin-Varin
Again, Named Defendants do not appear to contest that Plaintiff sufficiently alleged that he engaged in protected speech. (See generally Dkt. No. 19.) The Complaint alleges that Plaintiff engaged in constitutionally protected speech by the filing of a grievance against Defendant Devlin-Varin dated June 3, 2021. (Dkt. No. 2 at 73); see Davis v. Goord, 320 F.3d at 352-53 (“[T]he filing of prison grievances is a constitutionally protected activity.”); Flood v. Cappelli, 18-CV-3897, 2019 WL 3778736, at *7 (S.D.N.Y. Aug. 2, 2019) (collecting cases) (holding that the filing of a grievance is protected speech).
In addition, Plaintiff alleges that approximately sixty-eight days later, he was placed in the SHU in retaliation for that grievance. (Dkt. No. 2 at 6.) Confining an incarcerated individual in the SHU is an adverse action. See Johnson v. Morton, 2022 WL 1556404, at *5 (finding that the plaintiff sufficiently alleged an adverse action where he alleged that the defendant made a false disciplinary report and placed him in the SHU); Blount v. Apples, 22-CV-0216, 2022 WL 1101547, at *8 (N.D.N.Y. Apr. 13, 2022) (Dancks, M.J.) (citing Vidal v. Valentin, 16-CV-5745, 2019 WL 3219442, at *8 (S.D.N.Y. July 17, 2019) (“Confinement in the SHU is an adverse action.”); Smith v. Hash, 04-CV-0074, 2006 WL 2806464, at *6 (N.D.N.Y. Sept. 28, 2006) (Kahn, J.) (same)) (holding that placing the plaintiff in protective custody against his will was an adverse action).
Moreover, as set forth above in Part III.B.1. of this Report-Recommendation, the close temporal proximity between Plaintiff's grievance against Defendant Devlin-Varin on June 3, 2021, and her alleged placement of Plaintiff in the SHU on August 10, 2021, sufficiently alleges a causal connection at this procedural posture.
As a result, I recommend that Named Defendants' motion to dismiss Plaintiff's retaliation claim against Defendant Devlin-Varin be denied.
C. Whether Plaintiff Has Sufficiently Alleged an Eighth Amendment Conditions of Confinement Claim Against Defendants Devlin-Varin, Bodrogi, and Morely
After carefully considering the matter, I answer this question in the affirmative. I find Named Defendants' argument that Plaintiff fails to allege facts plausibly suggesting the objective and subjective elements of an Eighth Amendment claim, unpersuasive. In support of this argument, Named Defendants argue solely that placing Plaintiff under observation for a potential TB infection was reasonable. (Dkt. No. 19 at 14.) Assuming arguendo, that the Court agreed with Named Defendants' assertion, it still entirely ignores the conditions under which Plaintiff alleges that he was required to live from August 2021 until October 2021.
As set forth in Judge Kahn's order dated July 22, 2022, Plaintiff alleged, inter alia, that he was placed in a filthy hospital room with dried blood in the toilet, black dirt all over the edge of the entire cell, denied the ability to send mail to family or friends, denied a change of clothes, denied shampoo, and denied deodorant. (Dkt. No. 9 at 20 [citing Dkt. No. 2 at 17].)
The Second Circuit has “long recognized that unsanitary conditions in a prison cell can, in egregious circumstances, rise to the level of cruel and unusual punishment.” Walker v. Schult, 717 F.3d 119, 127 (2d Cir. 2013) (citing Lareau v. Manson, 651 F.2d 96, 106 (2d Cir. 1981) (noting that prisoners are entitled to, inter alia, sanitation)). Moreover, “the failure to provide prisoners with toiletries and other hygienic materials may rise to the level of a constitutional violation.” Walker, 717 F.3d at 127 (citing Trammell v. Keane, 338 F.3d 155, 165 (2d Cir. 2003) (“[T]his court and other circuits have recognized that deprivation of toiletries, and especially toilet paper, can rise to the level of unconstitutional conditions of confinement ....”); Atkins v. Cnty. of Orange, 372 F.Supp.2d 377, 406 (S.D.N.Y. 2005) (“The failure to regularly provide prisoners with . . . toilet articles including soap, razors, combs, toothpaste, toilet paper, access to a mirror and sanitary napkin for female prisoners constitutes a denial of personal hygiene and sanitary living conditions.”)). Further, “[a]vailability of hygienic materials is particularly important in the context of otherwise unsanitary living conditions.” Walker, 717 F.3d at 127 (citing LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1975)).
The allegations in the Complaint plausibly suggest that Plaintiff was deprived of an identifiable human need for safe and sanitary living conditions. In addition, the allegations plausibly suggest a risk that was obvious or otherwise must have been known to Defendants Devlin-Varin, Bodrogi, and Morely. As a result, I recommend that Named Defendants' motion to dismiss Plaintiff's conditions of confinement claim against them be denied.
ACCORDINGLY, it is hereby respectfully
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 2) be DISMISSED with respect to the free exercise claim against Defendant Collado, for failure to state a claim upon which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(6); and it is further respectfully
RECOMMENDED that Named Defendants' motion to dismiss (Dkt. No. 19) be GRANTED to the extent that it sought dismissal of Plaintiff's free exercise claim against Defendant Collado because the Complaint failed to state a claim upon which relief may be granted, and DENIED to the extent that it sought dismissal of the Complaint with respect to Plaintiff's (1) retaliation claim against Defendants Collado and Devlin-Varin, and (2) conditions of confinement claim against Defendants Devlin-Varin, Bodrogi, and Morely; and it is further
ORDERED that the Clerk of the Court is directed to amend the docket such that Defendant “S. Devilyn-Varin” is changed to “S. Devlin-Varin”; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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 FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding Pro Se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).