Opinion
No. 01 Civ. 0761 (LAK).
September 23, 2004
ORDER
Plaintiff objects in part to a report and recommendation of Magistrate Judge Henry B. Pitman, dated August 18, 2004, which recommended that defendants' motion to dismiss aspects of the complaint pursuant to Fed.R.Civ.P. 12(b)(6) be granted in part and denied in part. This order assumes familiarity with Judge Pitman's exhaustive report and recommendation.
1. Plaintiff first objects to the recommendation that his due process claim with respect to the January 2000 disciplinary hearing be dismissed under Heck v. Humphrey, 512 U.S. 477 (1994). This objection is sustained for the reasons set forth at pages 3 through 5 of plaintiff's objections.
Plaintiff requested the Court to take judicial notice of the fact that he is serving an indeterminate maximum sentence of life imprisonment. Pl. Obj. 4 n. 3. Defendants have not objected. The sentence is reported in People v. Atkinson, 185 A.D.2d 186, 586 N.Y.S.2d 10 (1st Dept.), leave to appeal denied, 80 N.Y.2d 926, 589 N.Y.S.2d 854 (1992). Plaintiff's request therefore is granted.
2. Plaintiff objects to Judge Pitman's recommendation that his retaliation claim against defendant Rhynders based on the alleged September 1999 sexual assault. Judge Pitman recommended dismissal of this claim on the ground that the temporal interval between plaintiff's alleged protected activity and the September 1999 sexual assault "is simply too long to sustain an inference of retaliation." RR at 19. With respect, this Court disagrees with the RR's ultimate conclusion.
The ultimate question in a situation such as this is whether a reasonable trier of fact could infer that the conduct complained of was retaliation for the protected activity. As Judge Pitman correctly observed, where there is a long gap between the protected activity and the alleged retaliatory conduct, that inference often would be unreasonable. But plaintiff does not rely on temporal proximity to establish the connection here. The alleged protected activity consisted of complaints to prison authorities concerning a sexual assault by Rhynders on December 31, 1997. The alleged retaliation consisted of defendant Rhynders pushing his thumbs into plaintiff's buttocks on September 8, 1999. While the time interval tends to undermine plaintiff's claim of a connection between his complaints about the 1997 incident and the events of September 8, 1999, the sexual nature of both tends to support a connection. The Court cannot say, purely on the basis of the pleadings, that a trier of fact could not reasonably infer that Rhynders on September 8, 1999 was both punishing plaintiff for complaining about the prior incident and sending the message that complaints to prison authorities could not protect him. Accordingly, the Court concludes that the retaliation claim based on these events is legally sufficient and sustains plaintiff's objection to this aspect of the RR.
3. Plaintiff's objection to so much of the RR as recommends dismissal of the Eighth Amendment claim based on the September 8, 1999 incident is without merit, substantially for the reasons stated by Judge Pitman, and is overruled.
4. Plaintiff's objection to so much of the RR as recommends dismissal of the claims against defendant Goord with respect to the disciplinary hearing appeals (Pl. Obj. 8-10) is sustained. The RR fails to take account of the specific allegations of defendant Goord's personal involvement in these matters contained in paragraphs 48-49 and 56 of the second amended complaint.
5. Plaintiff's objection to so much of the RR as recommends dismissal of claims against defendants Artuz, Selsky and Goord for lack of specificity (RR 34-35) are sustained, substantially for the reasons set forth at pages 10-11 of the objections.
6. Plaintiff's objection to so much of the RR as recommends dismissal of the claim against defendant Maly as untimely is sustained in light of the lack of any showing of prejudice by that defendant.
7. Plaintiff's objection to so much of the RR as recommends dismissal of the claims against defendant Artuz on the ground that it was not clearly established that affirming the denial of a grievance constituted personal involvement (RR 54-55) is sustained. In Williams v. Smith, 781 F.2d 319 (2d Cir. 1986), the Second Circuit held that liability attaches where "[a] supervisory official, after learning of the violation through a report or appeal, . . . fail[s] to remedy the wrong." Id. at 323. As an official who acts on a grievance necessarily has learned of the alleged violation through a report — the grievance — it was clearly established at all relevant times that the denial of a grievance constituted sufficient personal involvement. See Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000) ("law is considered `clearly established' so long as this `circuit's decisions "clearly foreshadow" a particular ruling on the issue'").
Accordingly, defendants' motion to dismiss the complaint is granted insofar as the plaintiff's Eighth Amendment claim against defendants Rhynders, Santosuosso and Bascue concerning the September 8, 1999 sexual assault is dismissed and denied in all other respects.
SO ORDERED.