Opinion
19 Civ. 11920 (VEC) (GWG)
07-09-2021
LEXY AVILA, Plaintiff, v. STACY TENZIE, NYC CORRECTIONAL, OFFICER SHIELD NO. 1478, Defendant.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Lexy Avila, proceeding pro se, brought this lawsuit under 42 U.S.C. § 1983 ("Section 1983") against Stacy Tenzie, a corrections officer at Rikers Island, alleging that Tenzie violated the First, Eighth and Fourteenth Amendment by verbally harassing and threatening Avila. See Amended Complaint, filed July 16, 2020 (Docket # 28) ("Am. Comp.").
Before the Court is Tenzie's motion to dismiss the Amended Complaint. Avila has filed no opposition to the motion. For the reasons stated below, the motion should be granted.
See Notice of Motion, filed August 21, 2020 (Docket # 30); Memorandum of Law in Support, filed August 21, 2020 (Docket #31) ("Def Mem."); Affidavit of Service, filed August 28, 2020 (Docket # 32).
I. BACKGROUND
A. Procedural History
Avila filed her initial complaint on December 30, 2019 and was permitted to proceed in forma pauperis. (Docket ## 2, 5). After Tenzie waived service of the complaint but before she filed this motion (Docket # 12), Avila asked for an "order of separation and an order of no contact be made and granted against the defendant," see Letter from Lexy Avila dated April 4, 2020, filed May 4, 2020 (Docket # 17). Tenzie responded to this letter (Docket # 19), and Avila two more letters in which she addressed Tenzie's response and indicated her intention to file another complaint. (Docket ## 22-23).
The Court set a deadline of July 24, 2020, for Avila to file an amended complaint. See Order, filed June 24, 2020 (Docket # 25). Avila filed the Amended Complaint on July 16, 2020 (Docket # 28), and at the same time asked for leave to file an affidavit signed by another inmate, Kennedy Felder, which Avila attached to her request. See Notice of Motion, filed July 16, 2020 (Docket # 27). The Court denied this request, noting that plaintiff had previously been warned that "if she chooses to file an amended complaint, she must include all her allegations or claims in that amended complaint" and that there was "no basis for filing an affidavit from another person at this time." See Memorandum Endorsement, filed July 17, 2020 (Docket # 29).
The defendant filed the instant motion on August 21, 2020. Several weeks later, Avila wrote the Court a letter in which she stated she had been unable to do any legal research on the motion due to COVID-19 restrictions. See Letter from Lexy Avila, dated September 15, 2020, filed September 22, 2020 (Docket # 34). The Court accordingly extended her time to respond to October 23, 2020. See Memorandum Endorsement, filed September 23, 2020 (Docket # 35). When that date passed without any response from plaintiff, the Court granted an additional extension to November 30, 2020, after noting that Avila had recently been moved from one facility to a new one without her informing the Court. See Order, filed October 30, 2020 (Docket # 38). The November 30, 2020, deadline also passed without a response, and the Court again extended the deadline to respond to the motion to January 3, 2021. See Order, filed December 11, 2020 (Docket # 41). Avila wrote a letter dated December 29, 2020, in which Avila reported that she had tested positive for COVID-19 and had been put in isolation. See Letter from Lexy Avila, filed January 5, 2021 (Docket # 42). The Court again extended her deadline to respond to "21 days of her release from isolation or by May 3, 2021, whichever is earlier." Order, filed January 7, 2021 (Docket # 45). After that May 3, 2021, deadline passed without any response from Avila, the Court deemed the motion to dismiss fully submitted. See Order, filed May 12, 2021 (Docket # 48). Avila has filed nothing since that date.
B. Allegations of the Amended Complaint
The following facts are taken from the Amended Complaint and assumed to be true for purposes of this motion. While a motion to dismiss for failure to state a claim generally requires a court to look only to the facts alleged in the pleadings, in light of Avila's pro se status the Court will consider the factual allegations contained in the affidavit of Kennedy Felder (Docket # 27) ("Felder Aff"), which Avila submitted on the same day as her amended complaint, to the extent it amplifies claims made in the pleading. See generally Burgess v. Goord, 1999 WL 33458, at *1 n.l (S.D.N.Y. Jan. 26, 1999) ("In general, 'a court may not look outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss. However, the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiffs additional materials . . . .'") (quoting Gadson v. Goord, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997)).
Avila is a transgendered person who was detained at the Rose M. Singer Center on Rikers Island at the time of the allegations of the complaint. Am. Comp. ¶ 3. Tenzie is a corrections officer employed at that facility. Id. ¶ 4.
On November 21, 2019, at 11:52 a.m., Avila "was working alone in the intake pantry area" of the facility, when Tenzie "stood in the doorway of the pantry intentionally provoking the plaintiff by stating 'is there a problem.'" Id. ¶ 7. Avila responded that '"no their [sic] is no problem, '" and was "prevented from leaving the pantry area." Id. Tenzie responded '"Oh I was just making sure['] in a very condescending manner." Id. Avila then immediately went to her mental health counselor "Jenny" and told her "that she was being harassed by this CO. because of her being transgendered." Id.
On November 25, 2019, at 12:30 p.m., Avila "was walking to the inmate bathroom area in intake," which is located "right next to the property room." Id. ¶ 8. Avila "overheard the defendant stating 'I wish these transgendered bullshit artist's [sic] in this jail would just die, '" and also heard Tenzie "state there are bullshit artist's [sic] and there [sic] even like that on the third and fourth floors." Id.
On November 26, 2019, at 10:36 a.m., Tenzie encountered Avila in "the pantry area of intake" and told Avila "if I catch you wearing sandles [sic] in here your [sic] going to be fired." Id. ¶ 9. Avila asked, "why does Allen get to wear them," and Tenzie said "because Allen doesn't give me problems." Id.
Avila alleges that on December 2, 2019, Tenzie had "two seperate [sic] conversations . . . with inmate Clark," in which Tenzie said "Avila and Leonard[] are probably having sex in intake they both work there." Id. ¶ 10. Avila alleges that Tenzie told another corrections officer "I am going to do everything in my power to get both Avila and Leonard fired from intake." Id. The other officer stated in response that "Leonard and Avila don[']t need to be around one another they should all be seperated [sic] and thrown out of the building." Id.
Avila alleges that on March 29, 2020, after she filed her initial complaint, she was told by Kennedy Felder that Tenzie "was making threats against my life." Id. ¶ 11. Specifically, Felder told Avila that Tenzie had said "she knew real niggaz in the street with guns that would handle me." Id. Felder's affidavit elaborates that Tenzie told him "that she hangs out with a bunch of niggas in the streets and that they carry guns and that Lexy Avila will get what is due to her and that Lexy's case against her will go no where [sic]." Felder Aff. at 1. Avila alleges that Tenzie "is retaliating against me and causing psychic injury due to my filing this action." Am. Comp. ¶11.
The Amended Complaint alleges a single count of "breach of duty to protect." Id. at 5. Avila alleges that Tenzie "exercized [sic] deliberate indifference to plaintiffs health & safety in failing to protect plaintiff from attack by maliciously spreading rumors to both inmates and correctional officers in stating that plaintiff was engaged in sexual behavior with inmate Leonard[.] Several inmates confronted plaintiff from unit 45B to inquire as to [whether] plaintiff had in fact had sex with Leonard." Id. ¶ 12. Avila alleges that this "conduct of mental harm & the psychic injuries that the aforementioned Defendant has induced, have resulted as part of such unnecessary, cruel, & outrageous conduct." Id. Avila asks for "an amount sufficient to compensate her for the pain & mental anguish suffered by her due to the deliberate indifference & intentional misconduct of the aforementioned defendant, but in no event less than $300,000.00 together with her attorneys['] fees & costs." Id. At 7.
II. LEGAL STANDARD
A party may move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) when the opposing party's complaint "fail[s] to state a claim upon which relief can be granted." While a court must accept as true all of the allegations contained in a complaint, that principle does not apply to legal conclusions. See Ashcroft v. Iqbal 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("[A] plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.") (punctuation omitted). In other words, "[f]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Iqbal, 556 U.S. at 678, and thus a court's first task is to disregard any conclusory statements in a complaint, Id. at 679.
Next, a court must determine if the complaint contains "sufficient factual matter" which, if accepted as true, states a claim that is "plausible on its face." Id. at 678 (punctuation omitted). "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. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (punctuation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," a complaint is insufficient under Fed.R.Civ.P. 8(a) because it has merely "alleged" but not "'show[n]' . . . that the pleader is entitled to relief." Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
Pro se plaintiff filings are liberally construed, and "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (punctuation omitted); accord Littlejohn v. City of NY., 795 F.3d 297, 322 (2d Cir. 2015); see also Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (review of pro se complaint for sufficiency requires "special solicitude, interpreting the complaint to raise the strongest claims that it suggests") (punctuation omitted).
III. DISCUSSION
In a suit brought under 42 U.S.C. § 1983, a plaintiff must show that there has been a denial of a constitutional or federal statutory right and that the deprivation of such right occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins. 487 U.S. 42. 48 (1988). Section 1983 does not grant any substantive rights but rather "provides only a procedure for redress for the deprivation of rights established elsewhere," such as in the Constitution. Sykes v. James, 13 F.3d515, 519(2dCir. 1993).
In light of her pro se status, the Court construes Avila's pleading as raising three different claims: 1) a claim that Tenzie's verbal harassment violated Avila's Eighth Amendment or Fourteenth Amendment due process rights; 2) a claim that Tenzie's harassment violated the Equal Protection Clause of the Fourteenth Amendment; and 3) a First Amendment retaliation claim based on Tenzie's alleged threat against Avila.
A. Eighth/Fourteenth Amendment
Avila styles her complaint as raising a claim of "breach of duty to protect," Am. Comp. at 5, because Tenzie failed "to protect plaintiff from attack by maliciously spreading rumors to both inmates and correctional officers" about Avila's sexual behavior, Id. ¶ 12. Avila characterizes Tenzie's behavior as "gratuitous disclosure and sexual harassment." Id.
The Eighth Amendment bars "cruel and unusual punishments." U.S. Const, amend. VIII. This prohibition "places restraints on prison officials, who may not, for example, use excessive physical force against prisoners." Farmer v. Brennan, 511 U.S. 825, 832 (1994). It further "imposes duties on these officials, who must provide humane conditions of confinement." Id.
As stated by the Second Circuit,
An official violates the Eighth Amendment when two requirements are met. . . . First, the alleged "punishment" must be, "objectively, sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994) .... Under the objective standard, "conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Second, the prison official involved must have a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834.Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997). The Second Circuit held in Boddie that "[b]ecause sexual abuse by a corrections officer may constitute serious harm inflicted by an officer with a sufficiently culpable state of mind, allegations of such abuse are cognizable as Eighth Amendment claims." Id. But the Court in Boddie stressed that such allegations must be "severe enough to be objectively, sufficiently serious." Id. (punctuation omitted).
Because Avila's complaint does not state whether she was a pretrial detainee or convicted prisoner during the events at issue, we must also consider whether she raises a claim under the Fourteenth Amendment's Due Process clause. "A pretrial detainee's claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eight Amendment." Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). However, like convicted prisoners, pretrial detainees must also allege "the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process." Id; accord Horace v. Gibbs, 802 Fed.Appx. 11, 14 (2d Cir. 2020) ("For both the Eighth and Fourteenth Amendments, the objective prong poses the same standard."); Bellottov. Ctv. of Orange. 248 Fed.Appx. 232, 235 (2d Cir. 2007) (citing Boddie's "objectively, sufficiently serious" standard and writing that "[w]e apply the same standard of law to excessive force claims brought by pretrial detainees, which arise under the Fourteenth Amendment rather than the Eighth."); United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999) (pretrial detainee must show that "the deprivation alleged is objectively sufficiently serious or harmful enough" to state Fourteenth Amendment Due Process claim); see also Lewis v. Huebner. 2020 WL 1244254, at *9 (S.D.N.Y. Mar. 16, 2020) (treating objective standard of Eighth and Fourteenth Amendment claim as identical for sexual assault claim, while noting that "it is presently unclear" whether the subjective prong of "Eighth Amendment sexual abuse claims" was "also required for claims of sexual abuse under the Fourteenth Amendment") (punctuation omitted). Because we conclude that Avila cannot satisfy this objective standard, whether Avila was a pretrial detainee or convicted prisoner at the time of the alleged conduct does not alter the analysis.
In Boddie, the plaintiff had alleged several instances of sexual misconduct by a corrections officer, who made various "pass[es]" at Boddie, "touched his penis," and deliberately "bumped into him," the second "time 'with her whole body vagina against penis pinning [him] to the door.'" Id. at 859-60. Despite acknowledging that the "isolated episodes of harassment and touching alleged by Boddie are despicable and, if true, they may potentially be the basis of state tort actions," the Second Circuit affirmed the dismissal of Boddie's sexual abuse claim, holding that his allegations "do not involve a harm of federal constitutional proportions as defined by the Supreme Court." Id. at 861. "No single incident that he described was severe enough to be objectively, sufficiently serious." Id. (punctuation omitted). The Second Circuit has since indicated that "while the standard articulated in Boddie remains the same, its applicability must change as the basic mores of society change." Crawford v. Cuomo, 796 F.3d 252, 260 (2d Cir. 2015) (punctuation omitted). "Accordingly, conduct that might not have been seen to rise to the severity of an Eighth Amendment violation 18 years ago may now violate community standards of decency, and for that reason, we believe that the officer's conduct in Boddie would flunk its own test today." Id.
Here, Avila's allegations against Tenzie are far less serious than those dismissed in Boddie. Avila makes no allegations of physical action, touching, or abuse by Tenzie other than the conclusory allegation that Tenzie at one point somehow "prevented [Avila] from leaving the pantry area." Am. Comp. ¶ 7. All of her allegations center around statements made by Tenzie either to Avila directly or to other inmates and corrections officers. See Am. Comp. ¶¶7-11. Avila alleges that these statements have caused her psychological harm, causing her to go to "mental health on numerous occasions." Id. at 5.
Even this conclusory allegation is immediately undercut by Avila's own complaint, in which she alleges that after being "prevented from leaving the pantry area," she nevertheless "immediately went to mental health and spoke with her counselor Jenny." Id.
We cannot find, however, that these allegations are "objectively, sufficiently serious" to constitute a violation of the Eighth or Fourteenth Amendments. Farmer, 511 U.S. at 834. Courts have dismissed sexual harassment Eighth Amendment claims that alleged either equivalent or more serious conduct than the verbal statements allegedly made by Tenzie here. See, e.g., Keaton v. Ponte, 2017 WL 3382314, at *10 (S.D.N.Y. Aug. 4, 2017) (dismissing Eighth Amendment claim alleging officers "encouraged inmates to utilize the showers, watched them doing so, and made sexual gestures toward the inmates with their lipsticks and tongue" as insufficiently severe); Burroughs v. Petrone, 138 F.Supp.3d 182, 205 (N.D.N.Y. 2015) (dismissing claim involving "two instances of verbal sexual harassment by [Defendant]" and allegation "that, on one occasion, [Defendant] masturbated in plaintiffs presence"); Jones v. Harris, 665 F.Supp.2d 384, 396 (S.D.N.Y. 2009) ("an allegation that a corrections officer verbally propositioned a prisoner on a single occasion, without engaging in any physical activity, simply does not rise to the level of an Eighth Amendment violation"); Anderson v. Nassau Cry., 2004 WL 1753262, at *1 (E.D.N.Y. May 13, 2004) (dismissing claim as insufficiently severe where plaintiff alleged that "on one occasion in April of 1999 a corrections officer called [plaintiff] a 'retart,' cursed him, exposed his penis to [plaintiff], and made lewd suggestions"); Smithy. Chief Exec. Officer, 2001 WL 1035136, at *1 (S.D.N.Y.Sept. 7, 2001) (dismissing claim for failure to allege sufficiently severe conduct where plaintiff alleged corrections officer "entered plaintiffs protective custody unit. . . grabbed plaintiffs buttocks, and used 'obscene language' in front of other inmates"); Young v. Coughlin, 1998 WL 32518, at *7-8 (S.D.N.Y.Jan. 29, 1998) (dismissing claim for, inter alia, failing to allege "harm of federal constitutional magnitude" where corrections officer made "sexually suggestive comments" to plaintiff), aff d, 182 F.3d 902 (2d Cir. 1999). Thus, her claim regarding verbal harassment, whether brought under the Eighth or Fourteenth Amendment, should be dismissed.
While Tenzie argues that verbal harassment, "even if inappropriate or unprofessional," can never violate the Eighth Amendment, Def Mem. at 7, we decline to sweep so broadly and instead confine our analysis to the facts of this case.
Rufino v. Murphy, 2010 WL 1444562 (D. Conn. Apr. 12, 2010), adhered to on reconsideration, 2010 WL 2026446 (D. Conn. May 20, 2010), involved far more prolonged and more serious harassment and thus does not support Avila's position in this case.
To the extent Avila is attempting to allege a failure to protect claim under the Eighth or Fourteenth Amendment, as her complaint states (Am. Comp. at 5), this claim must also fail. For a claim "based on a failure to prevent harm, the inmate must show that [s]he is incarcerated under conditions posing a substantial risk of serious harm." Farmer, 511 U.S. at 834. "To succeed on such a claim, the prisoner must establish both that a substantial risk to his safety actually existed and that the offending prison officials knew of and consciously disregarded that risk." Baines v. City of New York, 2004 WL 213792, at *6 (S.D.N.Y.Feb. 5, 2004) (citing Farmer, 511 U.S. at 834, 837-39). Under the Fourteenth Amendment, while the "substantial risk" standard remains the same, a detainee need only show that the defendant "should have known that the condition posed an excessive risk to health or safety." Taylor v. City of New York, 2018 WL 1737626, at *12 (S.D.N.Y. Mar. 27, 2018) (quoting Darnell, 849 F.3d at 35, punctuation omitted). Because we conclude that Avila has not alleged any conditions posing a substantial risk of serious harm, this difference again does not alter the analysis.
"The standard for establishing a failure-to-protect claim is quite high, . . . and, in determining whether there was a substantial risk of serious harm, consideration is given to the seriousness of the injury sustained." Hamilton v. Riordan, 2008 WL 4222089, at *1 (S.D.N.Y. Sept. 11, 2008) (punctuation omitted). But the only facts alleged by Avila that bear at all on a failure to protect claim are her allegations that a group of inmates "confronted" her "to inquire as to weather [sic] plaintiff had in fact had sex with Leonard." Am. Comp. ¶ 12. These allegations do not meet the "substantial risk of serious harm" standard of Farmer, as Avila does not allege that the inmates did anything to her other than "confront" and "inquire." Id. Her complaint does not allege any conditions that could pose a "substantial risk to [her] safety" that Tenzie failed to protect her from. Caines v. Pacheco, 2021 WL 2352413, at *6 (S.D.N.Y. June 9, 2021). Thus, her failure to protect claim must also be dismissed.
B. Equal Protection Claim
Avila arguably seeks to assert a claim based on the Fourteenth Amendment's Equal Protection clause, in that Avila complains that she has been targeted by Tenzie "because of her being transgendered," Am. Comp. ¶ 7, and that Tenzie has made statements that suggest animus towards transgender individuals, see Id. ¶ 8.
To assert an Equal Protection claim under the Fourteenth Amendment, a plaintiff must either allege "selective adverse treatment of individuals compared with other similarly situated individuals if such selective treatment was based on impermissible considerations," or that plaintiff was "intentionally treated differently from others similarly situated with no rational basis for the difference in treatment." Bizzarro v. Miranda, 394 F.3d 82, 86, 88 (2d Cir. 2005) (punctuation omitted). Thus, "[a]n essential element of an equal protection claim is showing the differential treatment between the plaintiff and those in another group." Gibson v. Heary, 2021 WL 854736, at *12 (W.D.N.Y.Mar. 5, 2021) (citing Phillips v. Girdich, 403 F.3d 124, 129 (2d Cir. 2005)). A prisoner plaintiff must also "demonstrate that his treatment was not reasonably related to any legitimate penological interests." Phillips, 408 F.3d at 129 (punctuation omitted).
Here, Avila has not alleged that she was treated differently from other similarly situated individuals. The only reference to differential treatment found in her complaint is in the allegation that Tenzie said another inmate, Allen, could wear sandals in the pantry area even though Avila could not. See Am. Comp. ¶ 9. When questioned as to why this was so, Tenzie responded "because Allen doesn't give me problems." Id. The paucity of facts presented means that the Amended Complaint does not show that Tenzie either treated Avila differently based on impermissible considerations or acted without rational basis in instituting the sandal policy. Nor does the Amended Complaint show that this policy was not reasonably related to a legitimate penological interest.
Another portion of Avila's complaint suggests that Avila is not the only target of Tenzie's harassment, but rather that Tenzie also showed animus towards an individual named "Leonard." Am. Comp. ¶ 10. But, as was true for Allen, Avila includes no allegations about Leonard's similarity or dissimilarity to her. Thus, her claim of an equal protection violation - to the extent it is asserted at all - must be dismissed for this failure.
To the extent Avila is alleging that the verbal harassment forms the basis of an equal protection claim, the Second Circuit has recognized that, in the context of actions by law enforcement and prison officials, allegations of solely verbal harassment do not rise to the level of an Equal Protection violation. See Lee v. Mackav. 29 Fed.Appx. 679, 680 (2d Cir. 2002) (allegation that defendant "made racial remarks does not state a claim under the Fourteenth Amendment") (citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam)); Id. at 680-81 ("Lee makes no cognizable equal protection claim from an allegation of racial comments alone."); accord Cole v. Fischer, 379 Fed.Appx. 40, 43 (2d Cir. 2010) (acknowledging that "verbal harassment, standing alone, does not amount to a constitutional deprivation" in the Fourteenth Amendment context) (citing Purcell, 790 F.2d at 265); see also Williams v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999) ("The question in the equal protection context, however, is not just whether the conduct is racially motivated but also whether that action deprives a person of equal protection of the laws. . . . Where the conduct at issue consists solely of speech, there is no equal protection violation.") (punctuation omitted). District courts in this Circuit have similarly dismissed allegations of verbal conduct as insufficient because they do not allege a constitutional injury. See, e.g., Nicholson v. Ferreira, 2021 WL 327529, at *5 (D. Conn. Feb. 1, 2021) (dismissing equal protection claim based on single occasion where corrections officer "referred to [plaintiff] in a derogatory manner by calling him a terrorist because he is a Muslim"); Khalifa v. City of New York, 2019 WL 1492905, at *4 (E.D.N.Y.Apr. 4, 2019) ("[Plaintiffs'] only claim for equal protection rests on [defendant's] comments about Muslims which, while deplorable, amount only to verbal harassment. On its own, verbal harassment, including harassment that contains racial epithets, does not amount to a constitutional deprivation.") (punctuation omitted); Banks v. Cty. of Westchester, 168 F.Supp.3d 682, 696 (S.D.N.Y.2016) (dismissing discrimination claim because plaintiff failed "to put forth any meaningful comments, actions, or examples of similarly-situated persons outside of his protected class being treated differently" and "the only allegation related to a protected class is that Defendant. . . called him a" racial slur, which was not actionable) (punctuation omitted); Ali v. Connick, 136 F.Supp.3d 270, 276 (E.D.N.Y.2015) ("verbal harassment alone does not amount to a constitutional deprivation"); D'Attore v. New York City, 2012 WL 2952853, at *6 (S.D.N.Y. July 19, 2012) ("[Plaintiff] claims that one of the defendants directed a racial slur at him, but he does not claim any appreciable injury flowing from the alleged mistreatment. Therefore, he has failed to make out a claim for violation of equal protection."); Vega v. Artus, 610 F.Supp.2d 185, 209 (N.D.N.Y. 2009) ("Plaintiff merely alleges that the remaining Defendants made harassing comments against him because they believed that he was homosexual. . . . [These] allegations ... do not plausibly suggest a violation of equal protection . . . allegations of verbal harassment are insufficient to support a § 1983 claim."); Haussman v. Fergus, 894 F.Supp. 142, 149 (S.D.N.Y. 1995) ("[T]he taunts, insults and racial slurs alleged to have been hurled at plaintiff by defendants, while reprehensible if true, do not comprise an infringement of constitutional guarantees.").
C. First Amendment Retaliation
Avila amended her complaint to include an allegation that Tenzie had retaliated against her after Avila filed her complaint. See Am. Comp. ¶11. The Court construes this allegation as seeking to press a claim that Avila's First Amendment right to be free from retaliation was violated.
The First Amendment protects prisoners from retaliation for engaging in protected speech. A prisoner asserting a retaliation claim must show "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (punctuation omitted).
Tenzie argues that Avila cannot make out the second part of this test because Tenzie's "alleged comments were lacking in directness and specificity to qualify as an adverse action." Def Mem. at 13. While acknowledging that "certain verbal threats can qualify as an adverse action," Tenzie argues that a threat qualifies as such only if it is '"sufficiently specific and direct.'" Id. at 14 (quoting Mateo v. Bristow. 2013 WL 3863865, at *5 (S.D.N.Y. July 16, 2013)). Tenzie cites to several cases where threats were found insufficiently specific or direct and thus unable to sustain a retaliation claim. See Id. at 15-16.
As we have previously noted, "verbal threats" in the prison context "may constitute adverse action" depending on their "specificity and the context in which they are uttered." Lunney v. Brureton, 2007 WL 1544629, at *23 (S.D.N.Y.May 29, 2007) (collecting cases), adopted by, 2007 WL 2050301 (S.D.N.Y. July 18, 2007). Tenzie's statement to Felder that she knew "real niggaz in the street with guns" that would "handle" Avila, Am. Comp. ¶11, certainly suggests that Avila might be harmed if released, though it is not so obviously a threat to cause that harm. But even if it were viewed as a threat, courts have routinely found far more obvious threats to be insufficient to sustain a retaliation claim. See, e.g., Terry v. Hulse, 2018 WL 4682784, at *11 (S.D.N.Y. Sept. 28, 2018) (threats such as "telling him to drop the lawsuit, . . . and that they were gonna kill [him]" not adverse action) (punctuation omitted); Barnes v. Ctv. of Monroe. 85 F.Supp.3d 696, 740 (W.D.N.Y.2015) ("[Defendant's] statement that he would kill Plaintiff is too general to support a constitutional claim."); Barrington v. New York, 806 F.Supp.2d 730, 746 (S.D.N.Y.2011) (threat from officer "that 'me and my boys [sic] going to get you' while brandishing a copy of the grievance" not adverse action); Kemp v. LeClaire, 2007 WL 776416, at *15 (W.D.N.Y.Mar. 12, 2007) (threats of "your day is coming," "you'll be sent to your mother in a black box," and "you'll get your black ass kicked" not adverse actions); Bartley v. Collins, 2006 WL 1289256, at *2 (S.D.N.Y. May 10, 2006) (threat of "we going to get you, you better drop the suit" not adverse action).
As noted by Mateo v. Fischer, 682 F.Supp.2d 423, 434 (S.D.N.Y.2010), "[t]he less direct and specific a threat, the less likely it will deter an inmate from exercising his First Amendment rights." Here, Tenzie's alleged threat makes no specific reference to any individuals who might harm Avila, does not specify what harm will come to her, and gives no indication of when Avila could plausibly be harmed by these individuals. Am. Comp. ¶11. Additionally, it is also unclear if there was any belief by either Avila or Tenzie that Avila might have been released (i.e., be out on the "streets") so that any harm could have been carried out. The circumstances here are thus a far cry from the circumstances in cases where threats have been sustained as actionable adverse actions. See Quezada v. Roy, 2015 WL 5970355, at *22-23 (S.D.N.Y. Oct. 13, 2015) (declining to dismiss retaliation claim based on "several threatening comments" made directly to plaintiff including "threatening to kill Plaintiff); Ford v. Palmer, 539 Fed.Appx. 5, 7 (2d Cir. 2013) (reversing dismissal of retaliation claim where corrections officer "threatened to poison [plaintiff] in retaliation for the statements [plaintiff] made").
Tenzie's alleged threat is even less likely to deter Avila, and thus cannot qualify as an adverse action, because it was not even communicated directly to Avila, but rather was stated to another inmate and without any apparent request that it be communicated to Avila. Thus, any threat made by Tenzie to Avila was not "direct" in addition to being highly vague. Mateo, 682 F.Supp.2d at 434.
Because Avila has not shown that Tenzie took adverse action against her, she has failed to make out a necessary element of her First Amendment retaliation claim and thus this claim should also be dismissed.
IV. CONCLUSION
For the foregoing reasons, defendant's motion to dismiss (Docket # 30) should be granted.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Caproni. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson. Haskins. Nellis. Brittingham. Gladd & Carwile. P.C.. 596 F.3d 84, 92 (2d Cir. 2010).