Pro se Plaintiff Audra Harris brings this action under 42 U.S.C § 1983 against Defendants Brian Fischer, Kerry Smith, Thomas Fitzgerald, James Hardy, Lynda Hunter, Michael Jordan, Kesha Slade, Mark Oglesby, Lakesha Bell, Latisha Simmons, Sabina Kaplan, Larry Zwillinger, Elizabeth Williams, Donald Sawyer, Catherine McDermott-Coffin, Michael Capra, Fedele Fiore, Jeffrey Rorick, Joseph Joseph, Cynthia McCants, Richard Roy, Keenan Derry, Herminio Maldonado, Michael Miller, Ella Anderson, Valerie Bryant, Sharon Grant, Robin Trotter, Michael Dragoon, and Joseph Plowden—all employees of the New York State Department of Corrections and Community Supervision ("DOCCS") at the times relevant to this matter.

Plaintiff claims that Defendants violated her First, Fourth, Eighth and Fourteenth Amendment rights on several occasions during her incarceration at Bedford Hills Correctional Facility, through a pattern of misconduct including: the abuse of authority, fabricated misbehavior reports, malicious and calculated cell searches, harassment, retaliation, deliberate indifference, intentional misconduct, verbal and physical abuse, and beatings.

In total, Plaintiff brings eight separate claims, and alleges numerous infringements of her constitutional rights—though not always inside the structure of those eight claims.

Following discovery, Defendants moved for summary judgment on each of Plaintiff's claims.

For the reasons set forth below, Plaintiff's claims against Defendants Richard Roy, Joseph Joseph, Herminio Maldonando, Brian Fischer, Sabina Kaplan, Michael Capra, Thomas Fitzgerald, Elizabeth Williams, Catherine McDermott-Coffin, and Donald Sawyer are dismissed for lack of personal involvement, Count 2 against Defendant Keenan Derry and Count 5 as to Defendant James Hardy are both dismissed for failure to exhaust administrative remedies, and Defendants' motion for summary judgment is granted as to all remaining claims.

INITIAL BACKGROUND

Plaintiff Audra Harris was incarcerated at Bedford Hills Correctional Facility from September 30, 2008, to February 14, 2012 for burglary and criminal contempt. She was sentenced to serve a five-year term of incarceration, followed by five years of Post Release Supervision. (Clark Decl., Ex. B.; Med. 251.) Plaintiff has a history of alcohol abuse, and she attempted to commit suicide on three different occasions in the year prior to arriving at Bedford Hills. (Id.)

When she was admitted to Bedford Hills on September 30, 2008, Plaintiff was given a screening interview by the Office of Mental Health. This interview determined that Plaintiff suffered from three Axis I disorders: adjustment disorder with mixed anxiety and depressed mood, obsessive-compulsive disorder, and alcohol dependence. (Def. Stat. ¶ 147; Clark Decl., Ex. B; Med. 4.) As a result, Plaintiff was categorized as a Level 1 Treatment Needs patient. (Def. Stat. ¶ 149.) She was later diagnosed with an additional Axis I disorder, erotomania (a delusional disorder), on July 21, 2009, and two Axis II disorders, narcissistic personality disorder and borderline personality disorder, on June 9, 2010. (Id. ¶ 148.)

An Office of Mental Health Level 1 Treatment Needs/Service Level Designation is for patients displaying symptoms of "major/serious mental illness (e.g., schizophrenia, major depression with psychotic features, or psychotic disorder), with active symptoms requiring treatment ... [and] not having 6 months of psychiatric stability." (Def. Stat. ¶ 149, note 1.)

DISCUSSION

As is true of many pro se complaints, Plaintiff's pleading is extraordinarily difficult to parse. She alleges eight separate causes of action. I have done my best to figure out which of her numerous pages of factual allegations relate to which asserted claims for relief. In dealing with those claims, the easiest and most comprehensible way to proceed is count by count, rather than chronologically—especially since Plaintiff herself skips around rather than organizing her presentation by the date of each alleged incident, and includes, I assume by way of background, factual assertions that are not truly germane to any of her claims.

But before I address the eight causes of action, I need to dispose of the numerous defendants whose names appear in the caption, but who are not alleged to have done anything wrong.

I. Lack of Personal Involvement

"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)). Indeed, "A complaint based on a violation under § 1983 that does not allege the personal involvement of a defendant fails as a matter of law." Gusler v. City of Long Beach, 823 F. Supp. 2d 98, 139 (E.D.N.Y. 2011) (citing Rosa R. v. Connelly, 889 F.2d 435, 437 (2d Cir. 1989); Alfaro Motors. Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987); Johnson v. Barney, 360 Fed. App'x 199, 201 (2d Cir. 2010)).

Furthermore, "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Indeed, in Iqbal, "The Supreme Court explicitly rejected the argument that 'a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution.'" Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939, at *4 (S.D.N.Y. June 26, 2009) (quoting Iqbal, 556 U.S. at 667), aff'd, 387 F. App'x 55 (2d Cir. 2010).

Accordingly, "Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Iqbal, 556 U.S. at 677; cf. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). "For example, '[t]he allegation that plaintiff sent defendant[ ] letters complaining of prison conditions is not enough to allege personal involvement.'" Bellamy, 2009 WL 1835939, at *4 (quoting Laureano v. Pataki, No. 99 Civ. 10667, 2000 WL 1458807, at *4 (S.D.N.Y. Sept. 29, 2000)) (modifications in original); see also Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997).

A. Plaintiff's Claims Against Defendants Richard Roy, Joseph Joseph, Herminio Maldonando, Michael Dragoon, Sharon Grant, and Lynda Hunter Are Dismissed For Lack of Personal Involvement.

Although Defendants Richard Roy, Joseph Joseph, Herminio Maldonando, Michael Dragoon, and Sharon Grant are named in the caption, they are not mentioned anywhere in the complaint. Defendant Lynda Hunter is only mentioned once, in passing, and no facts are alleged to connect her to any cause of action.

"It is well-settled that 'where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted.'" Dove v. Fordham University, 56 F. Supp. 2d 330, 335 (S.D.N.Y. 1999) (quoting Morabito v. Blum, 528 F. Supp. 252, 262 (S.D.N.Y. 1981)); see also Kirkland v. Bianco, 595 F. Supp. 797, 799 (S.D.N.Y. 1984).

Accordingly, Plaintiff's claims against Defendants Richard Roy, Joseph Joseph, Herminio Maldonando, Michael Dragoon, Sharon Grant, and Lynda Hunter are dismissed for lack of personal involvement.

B. Plaintiff's Claims Against Defendants Brian Fischer, Sabina Kaplan, and Michael Capra Are Dismissed For Lack of Personal Involvement.

Plaintiff claims that Defendants Brian Fischer, Sabina Kaplan, and Michael Capra are liable to her only because of their role in the grievance process—or at least, Plaintiff's conception of the grievance process. Her allegations consist of these five defendants variously "signing off" on grievances, receiving complaints and referring them to subordinates, seeing her cell after alleged improper searches, and ignoring her letters.

"[B]oth the Court of Appeals and numerous district courts in this Circuit have repeatedly held that receipt of letters or grievances . . . is insufficient to impute personal involvement . . . . Were it otherwise, virtually every prison inmate who sues for constitutional torts by prison officials could name the supervisor as a defendant since the plaintiff must pursue his prison remedies, and invariably the plaintiff's grievance will have been passed upon by the supervisor." Voorhees v. Goord, No. 05 Civ. 1407, 2006 WL 1888638, at *5 (S.D.N.Y. Feb. 24, 2006) (internal quotations and brackets omitted). Similarly, a supervisor's response to a prisoner's letter, or referral of that letter to others for a response, is insufficient to demonstrate personal involvement in the matter grieved. See, e.g., Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); Partee v. Grood, No. 06 Civ. 15528, 2007 WL 2164529, at *5 (S.D.N.Y. July 25, 2007).

Accordingly, Plaintiff's claims against Defendants Brian Fischer, Sabina Kaplan and Michael Capra are dismissed.

C. Plaintiff's Claims Against Defendants Thomas Fitzgerald and Elizabeth Williams Are Dismissed For Lack of Personal Involvement In Any Action That Would Give Rise to a Constitutional Violation (Failure to State a Claim).

Plaintiff alleges that Defendants Fitzgerald and Williams had her sign a document saying that she would speak with her therapist about any problems with DOCCS officers. Plaintiff does not offer any evidence tending to show that she was thereby prevented from filing grievances—and she certainly filed a lot of them. Therefore, even if getting her to sign this letter were a violation of the Grievance Program's Code of Ethics (which it might be), the fact that Plaintiff was induced to sign it did not deprive her of any constitutional right. Thus, the claims against Fitzgerald and Williams must be dismissed—not for lack of personal involvement, as Defendants argue, but because there is no evidence that they were involved in any action that would support a § 1983 claim.

D. Plaintiff's Claims Against Defendants Catherine McDermott-Coffin and Donald Sawyer Are Dismissed For Lack of Personal Involvement.

Plaintiff claims that Defendant Catherine McDermott-Coffin, the Director of the Office of Mental Health at Bedford Hills, and Defendant Donald Sawyer, the Director of the Central Psychiatric Center of New York, were personally involved in improperly transferring her to a psychiatric center and later to the Therapeutic Behavioral Unit ("TBU").

The undisputed evidence demonstrates that Plaintiff's transfer to the Central New York Psychiatric Center followed her examination by two physicians who are not named as defendants, Doctor Michael Swartz and Doctor Fazlul Haque. The doctors designated Plaintiff for transfer because of a "mental illness for which immediate inpatient care and treatment in a hospital is appropriate." She was transferred to the TBU in accordance with N.Y. Corrections Law 137 § 6(d), which requires that inmates with serious mental illness be diverted into a residential mental health treatment center, such as the TBU, if they would otherwise be kept in segregated confinement, such as the Special Housing Unit, for longer than 30 days. Plaintiff was advised by a DOCCS psychologist, Doctor Jeanette Trujillo (also not named as a defendant), that she would be referred to the TBU. On the facts, neither transfer decision was made by either Defendant McDermott-Coffin or Defendant Sawyer. For that reason, her claim against them must be dismissed for lack of personal involvement.

Additionally, although Plaintiff claims that the two transfers resulted from a malicious and false diagnosis of paranoia and delusion, she was diagnosed as delusional a year prior to her temporary transfer to the psychiatric hospital, and two years before being transferred to the TBU, Moreover, none of her diagnoses are contradicted by later progress reports undertaken by other physicians. Therefore, her claim is insufficient to suggest the personal involvement of either Defendant in either of the transfers.

I now turn to the rest of Plaintiff's claims, and the Defendants against whom they are alleged.

II. Standard of Review on a Motion for Summary Judgment

A party is entitled to summary judgment when there is "no genuine issue as to any material fact" and the undisputed facts warrant judgment for the moving party as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). On a motion for summary judgment, the court must view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). Once such a showing has been made, the nonmoving party must present specific facts showing a genuine issue for trial. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). The party opposing summary judgment "may not rely on conclusory allegations or unsubstantiated speculation." Id.

Moreover, not every disputed factual issue is material in light of the substantive law that governs the case. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment." Anderson, 477 U.S. at 248. To withstand a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Instead, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmoving party. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 906 (2d Cir. 1997).

Although the same standards apply to pro se litigants, "special solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment." Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). Accordingly, the Court should "liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions 'to raise the strongest arguments they suggest.'" See Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)) (emphasis removed) (internal citation omitted).

III. Exhaustion of Administrative Remedies

A. Requirement that Plaintiff Exhaust Her Administrative Remedies

The Prison Litigation Reform Act ("PLRA") states: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (2006). The Supreme Court "has held that the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." George v. Morrison-Warden, No. 06 Civ. 3188, 2007 WL 1686321, at *2 (S.D.N.Y. Jun. 11, 2007) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)). An inmate-plaintiff's failure to exhaust administrative remedies acts as a bar against bringing an action in federal court. Jones v. Bock, 549 U.S. 199, 211 (2007); see also Flowers v. City of New York, 668 F. Supp. 2d 574, 577-78 (S.D.N.Y. 2009).

The Inmate Grievance Procedure provides a three-step process:

(1) First, the inmate must file a complaint with the Inmate Grievance Resolution Committee ("IGRC") within twenty-one calendar days of the alleged incident. 7 NYCRR § 701.5(a)-(b).

(2) Second, the inmate may appeal an unfavorable decision by the IGRC to the superintendent within seven calendar days after receipt of the IGRC's written response. 7 NYCRR § 701.5(c).

(3) Third and finally, the inmate may appeal an unfavorable decision by the superintendent to [the Central Office Review Committee] within seven calendar days after receipt of the superintendent's written response. 7 NYCRR § 701.5(d).

"[O]nly after [the Central Office Review Committee] has reviewed the appeal and rendered a decision are New York's grievance procedures exhausted." Gardner v. Daddezio, No. 07 Civ. 7201, 2008 WL 4826025, at *2 (S.D.N.Y. Nov. 5, 2008); see also Booth v. Churner, 532 U.S. 731, 735 (2001). "It is well-settled . . . that 'even when an inmate files a grievance and receives no response, he must nevertheless properly exhaust all appeals before his grievance is considered exhausted.'" George, 2007 WL 1686321, at *3 (quoting Biligen v. Griffen, No. 06 Civ. 4400, 2007 WL 430427, at *2 (S.D.N.Y. Feb. 8, 2007).

Failure to exhaust under the PLRA is an affirmative defense, so the initial burden of proof rests with Defendants. Jones, 549 U.S. at 216. Inmates are not required to specifically plead or demonstrate exhaustion in their complaints. Id. However, in response to a motion for summary judgment, where a defendant has presented evidence of non-exhaustion, a plaintiff cannot rely on her complaint and must come forward with her own proof showing that she did indeed exhaust her administrative remedies by complying with all the steps of the relevant grievance procedure. Failure to raise a genuine issue of fact will result in dismissal.

Despite the PLRA's absolute "no action" directive, the Second Circuit recognizes certain exemptions to the exhaustion requirement. So when an inmate plausibly seeks to challenge defendants' contention that he has failed to exhaust administrative remedies under the PLRA, the Court must analyze his claim under a three-part test. See Macias v. Zenk, 495 F.3d 37, 41 (2d Cir. 2007). The Court must consider: (1) whether the administrative remedies were, in fact, available to the prisoner; if not, the exhaustion requirement is inapplicable; (2) if those remedies were available, whether "the defendants are estopped from raising the affirmative defense of non-exhaustion because their actions inhibited the inmate's exhaustion of remedies, or because they forfeited the defense by failing to raise or preserve it," Andrews v. Cruz, No. 04 Civ. 566, 2010 WL 1142010, at *3 (S.D.N.Y. Mar. 9, 2010); and, finally, (3) whether "special circumstances" have been plausibly alleged that justify the prisoner's failure to exhaust. See Hemphill, 380 F.3d at 686.

Unavailability of administrative remedies is governed by an objective test—"that is, would a similarly situated individual of ordinary firmness have deemed [grievance procedures] available." Hemphill, 380 F.3d at 688 (internal quotation marks omitted). However, courts in this district have consistently held that, "Where 'the record reflects that [the inmate] continued to file grievance after grievance during the period of alleged unavailability, it is apparent that a reasonable person of ordinary firmness in [the inmate's] position, as well as [the inmate] himself, would not have thought that administrative remedies were unavailable.'" Rivera v. Anna M. Kross Ctr., No. 10 Civ. 8696, 2012 WL 383941, at *4 (S.D.N.Y. Feb. 7, 2012) (quoting Kasiem v. Switz, 756 F. Supp. 2d 570, 577 (S.D.N.Y. 2010) and collecting cases). A prisoner's "perception that the [facility's] grievance program was ineffective or that the filing of grievances was futile is insufficient to negate the PLRA's exhaustion requirement." Shariff v. Coombe, 655 F. Supp. 2d 274, 286 (S.D.N.Y. 2009).

An inmate may invoke estoppel in the PLRA context where the "defendants took affirmative action to prevent him from availing himself of grievance procedures." Amador v. Andrews, 655 F.3d 89, 103 (2d Cir. 2011) (internal quotation marks omitted). "Prior cases have held that verbal and physical threats of retaliation, physical assault, denial of grievance forms or writing implements, and transfers constitute such affirmative action." Id. at 103. The Second Circuit has indicated that the theory of equitable estoppel only applies to estop a defendant from asserting the affirmative defense of non-exhaustion if his own actions inhibited the inmate from exhausting. See Hemphill, 380 F.3d at 688-89; see also Martin v. City of New York, No. 11 Civ. 600, 2012 WL 1392648, at *7 (S.D.N.Y. Apr. 20, 2012). However, the inmate must have "reasonably [understood] that pursuing a grievance through the administrative process will be futile or impossible." Kasiem, 756 F. Supp. 2d at 577 (internal quotation marks omitted). Where an inmate "actually did pursue grievances and appeals throughout the time period in question, . . . any inference from his allegations that he reasonably understood the grievance process to be futile" is defeated. Id.

Finally, despite Porter, the Second Circuit has recognized that "there are certain 'special circumstances' in which, though administrative remedies may have been available and though the government may not have been estopped from asserting the affirmative defense of non-exhaustion, the prisoner's failure to comply with administrative procedural requirements may nevertheless have been justified." Giano v. Goord, 380 F.3d 670, 676 (2d Cir. 2004). The inquiry with respect to special circumstances is the same as that for unavailability—namely, "whether a similarly situated individual of ordinary firmness would have been deterred from following regular procedures." Hemphill, 380 F.3d at 690 (internal citation and quotation marks omitted).

The most commonly recognized special circumstances are where the inmate reasonably misunderstood the relevant grievance procedures. See Ruggiero v. Cnty. of Orange, 467 F.3d 170, 175 (2d Cir. 2006); Giano, 380 F.3d at 678-79. "Special circumstances" could include situations where a plaintiff's reasonable interpretation of applicable regulations regarding the grievance process led him or her to conclude that the dispute could not be grieved. Hemphill, 380 F.3d at 689; see also Giano, 380 F.3d at 676-77.

Where an inmate is threatened with retaliation if he files a grievance, his failure to exhaust his administrative remedies may (or may not) be excusable on all three grounds. See Hemphill, 380 F.3d at 686-91; see also Hepworth v. Suffolk County, No. 02 Civ. 6473, 2006 WL 2844408, at *5-8 (E.D.N.Y. Sept. 29, 2006).

Woodford's interpretation of the PLRA's exhaustion requirement, through the lens of the administrative law doctrine of exhaustion, and its focus on the benefits of strict adherence to grievance procedures, casts some doubt on court-created exceptions to exhaustion like Hemphill. See Zappulla v. Fischer, No. 11 Civ. 6733, 2013 WL 1387033 (S.D.N.Y. Apr. 5, 2013). The Second Circuit itself mentioned that Woodford could affect Hemphill in Amador, 655 F.3d at 102, Macias, 495 F.3d at 43 n. 1, and Ruggiero, 467 F.3d at 176. However, in some recent cases, Hemphill has been treated as good law. See, e.g., Messa v. Goord, 652 F.3d 305, 309-10 (2d Cir. 2011); Pooler v. Nassau Univ. Med. Ctr., 848 F. Supp. 2d 332, 340 (E.D.N.Y. 2012). In the absence of a clear indication that Hemphill has been overruled, this Court has no choice but to treat it as good law.

Except in connection with her Eighth Claim for Relief, plaintiff neither alleges that she falls within any of these exemptions, nor offers evidence that she would be so entitled. As result, these cases have no relevance to the issues before this court on Counts One through Seven.

B. Facts Related to the Administrative Remedies Available to Plaintiff

Final administrative decisions under DOCCS's Inmate Grievance Program are rendered by the Central Office Review Committee (the "Committee"). (Hale Decl. ¶ 1.) DOCCS Directive #4040 requires that grievance files and logs are maintained for at least the current year in addition to the previous four calendar years. The Committee maintains files of grievance appeals in accordance with Directive #4040. (Id. ¶ 3.) The Committee's computer database contains records of all appeals received from the facility Inmate Grievance Program Offices that were heard and decided by the Committee since 1990, along with a "great deal" of historical data related to appeals. (Id. ¶ 4.)

On February 2, 2012, the Committee conducted a search of its database for all DOCCS grievances appealed to the Committee that were filed by Plaintiff. (Id. ¶¶ 5-6.) No evidence was found that Plaintiff had appealed any grievances to the Committee regarding: a use of force incident that occurred on April 3, 2010 involving Officer Keenan Derry; a use of force incident that occurred on May 24, 2011 involving Officer Derry; a use of force incident that occurred on August 18, 2011 involving Officer Lakesha Bell; a use of force incident that occurred on September 13, 2011 involving Officer Bell; a cell transfer on September 13, 2011 involving Officer Bell or Officer Mark Oglesby; a handcuffing/restraining incident on November 4, 2011 involving Officer James Hardy; or a cell search that occurred on October 24, 2009 involving Officer Bell. (Def. Stat. ¶ 142; Hale Decl. ¶ 7.) The search identified thirty grievances submitted to the Committee by Plaintiff, but none involved the above incidents. (Id. ¶ 8.) Plaintiff, however, alleges that she grieved each of her complaints, and that she appealed "ALL" of her grievances and complaints to the Committee. (Second Amendment Complaint, p. 5.)

At a Tier III Disciplinary Hearing, Plaintiff was found guilty of misbehavior on April 3, 2010. She appealed by filing an Article 78 petition in the Supreme Court of Westchester County. (Def. Stat. ¶ 143.) The Supreme Court transferred the matter to the Appellate Division, Second Department, which affirmed the Disciplinary Hearing's determination on November 19, 2012. (Id. ¶¶ 144-45.) Plaintiff did not appeal this decision. (Id. ¶ 146.)

These facts are undisputed; Plaintiff offers no evidence to controvert them. They are deemed established and will be alluded to as needed below.

IV. Plaintiff's Claims

A. Allegations Relating to Count 1: Excessive Uses of Force on April 8, 2010

In Count 1, Plantiff alleges three separate instances in which she was subjected to excessive force on April 8, 2010. The facts relating to those incidents—either undisputed or viewed most favorably to Plaintiff—are as follows:

Following an incident that occurred on April 3, 2010, Plaintiff received a misbehavior ticket from Officer Derry for refusing a direct order and creating a disturbance. She was sent to prehearing confinement. (Def. Stat. ¶ 29.) While in prehearing confinement, Plaintiff started refusing food. She said that she was on a "hunger strike, because [she] was fed up with getting tickets and being antagonized and harassed by the officers at Bedford Hills." (Id. ¶ 30.)

Consequently, she was transferred to the Bedford Hills infirmary for observation. (Id. ¶ 31.) Transfer to the infirmary is required for inmates who consistently refuse meals over a 3-day period. (Id. ¶ 32.) An inmate on hunger strike is required to remain in the infirmary until she has consumed at least 6 meals over a 3-day period. (Id. ¶¶ 33, 39.)

On April 4, 2010, while in the infirmary, Plaintiff was evaluated by DOCCS therapist Paul Spatarella. (Id. ¶ 34.) In his report, Mr. Spatarella wrote that Plaintiff's "narcissistic personality must be satiated by, what she views as security admitting that they are wrong. [Plaintiff] clearly stated that she is not suicidal, but she is willing to have detrimental effects on her health to prove a point, and this can logically be escalated to a more overt form of self-harm." (Id. ¶ 35.)

Plaintiff claims that, on April 8, 2010, another inmate entered her infirmary cell and harassed her. (Id. ¶ 36.) She later told Mr. Spatarella that she thought the DOCCS staff sent the inmate to spy on her. (Id. ¶ 37.) Plaintiff then demanded immediate discharge from the infirmary, even though she had eaten only two meals in the prior three days. (Id. ¶ 38.)

Following this incident, Plaintiff put paper on her cell windows "so nobody could see in." (Id. ¶ 40.) When DOCCS officers ordered her to remove the paper, she refused. (Id. ¶ 41.) Thereafter, Mr. Spatarella directed Plaintiff to be transferred to an observation cell in the Residential Crisis Treatment Program, where she could be monitored more closely. (Id. ¶ 42; McDermott Aff. ¶ 6.)

Once Plaintiff arrived at the observation cell unit, she was directed to remove her clothes and change into a smock. (Def. Stat. ¶ 44.) Smocks are required to reduce the chance an inmate will harm herself or others while in an observation cell. Plaintiff had been in an observation cell before; she acknowledged that this was standard procedure (Id. ¶ 45; McDermott Aff. ¶ 7.)

Plaintiff tried to change into the smock by putting it on over her clothes, but she was told she had to undress. (Def. Stat. ¶ 46.) Plaintiff refused, so DOCCS staff changed her clothing for her. (Id. ¶ 47.) Plaintiff claims that the officers were aggressive and violent—going as far as snatching and hitting her, knocking her down, and handcuffing her by the legs—while ripping and trying to pull off her clothes while she yelled that she could do it herself. (Harris Dep. 30:11-31:7.) She felt embarrassed to be "naked like that." (Id.) Plaintiff alleges that she was struck on her ribs while her clothes were being removed, (Def. Stat. ¶ 48), and that she called for medical attention several times, but that the officers would not let the nurses touch her. (Harris Dep. 30:8-25.)

After Plaintiff was in her gown and the officers had left her cell, she picked up her mattress and moved it into the shower. (Def. Stat. ¶ 49.) Plaintiff was given several direct orders to return the mattress to her bed, but she refused. (Id. ¶ 50.) Instead, she started ripping cotton from the mattress, pasting it on the windows so that the officers could not see her in her cell. (Id. ¶ 51.) According to Plaintiff, she did this because she felt humiliated—like she "had been raped, and nobody would help [her]." (Harris Dep. 32:2-6.) She also threw cotton against the wall and on the floor. (Def. Stat. ¶ 52.) Later, she was also seen trying to flood her cell, as well as lying in the shower area of her cell and refusing to come out. (Id. ¶ 70.)

When Plaintiff refused to remove the cotton, Sergeant Michael Miller and Officers Ella Anderson, Valerie Bryant, and Robin Trotter entered the cell and began removing it themselves. (Id. ¶ 53.) Plaintiff was screaming, banging on the window, and repeatedly ringing the intercom. (Id. ¶ 54.); she did this because she felt she needed help. (Harris Dep. 33:16-20.) The officers asked her if she had any more cotton, and Sergeant Miller directed her to lift up her smock. (Id. ¶¶ 55-56.) Plaintiff refused, after which three officers threw her on the ground, lifted up her smock and forcibly opened her legs, so that Sergeant Miller could look between them. (Id. ¶ 57; Harris Dep. 32:22-33:9.) Plaintiff does not allege that Sergeant Miller touched her or made any sexual comments toward her; he simply conducted a visual search. (Def. Stat. ¶ 58.)

Sergeant Miller then contacted the Office of Mental Health for assistance. (Def. Stat. ¶ 59.) Nurse Debra Murphy responded. She tried to speak with Plaintiff through the door, but Plaintiff refused to talk to her. (Id. ¶ 60.) A physician directed Nurse Murphy to administer ten milligrams of the antipsychotic Zyprexa to Plaintiff. (Id. ¶ 61.) Plaintiff refused to take the dose of Zyprexa in pill form; accordingly, several officers restrained her, and Nurse Murphy injected Plaintiff with the antipsychotic instead. (Id. ¶¶ 62-63.) After the injection, the officers left the cell.

Subsequently, Plaintiff picked up her food tray and said, "I'm going to throw my food tray." (Id. ¶ 64.) Despite several direct orders from Officer Trotter not to throw her food or tray, Plaintiff did so. (Id. ¶¶ 65-66.) Officer Trotter ordered Plaintiff to clean up the mess, but Plaintiff retreated into the shower stall and said, "I ain't fucking cleaning shit up, keep your fucking smock." (Id. ¶ 67.) She fell asleep in the shower stall area shortly afterwards. (Id. ¶ 68.)

The following day, Mr. Spatarella met with her. (Id. ¶ 69.)

Plaintiff alleges that she suffered severely bruised ribs, a three inch cut underneath her left arm, scraped skin on her elbow, and an injury to her hand because one of the officers brutally stomped and stood on it. (Harris Decl. ¶ 63.) She also claims that she was denied medical attention for these injuries. (Id. ¶¶ 64-65.) The undisputed evidence shows that the day after the incident, DOCCS medical staff attempted to assess Plaintiff, but she refused to let them examine her or take her vital signs, and instead lay in her show in a fetal position. (Def. Stat. ¶¶ 71-72.) A medical exam after placement in an observation cell indicated a five to six inch long abrasion, for which Plaintiff was given bacitracin ointment. (Id. ¶ 73.) Pictures of Plaintiff were taken on April 15, 2010. (Id. ¶ 74.)

Also on April 15, 2010, Plaintiff was sent to the Central New York Psychiatric Center (the "Center"), a secure forensic inpatient facility, for mood stabilization. (Id. ¶ 75.) The Center is the only state facility in New York where inmate-patients may be hospitalized. (Id. ¶ 76.) According to the Notice of Admission from Bedford Hills, Plaintiff was admitted because she was "presenting as paranoid, writing letters compulsively concerning security and how she feels persecuted by the officers, increasingly confrontational with security that put her and the security officers in dangers." (Id. ¶ 77.)

Although Plaintiff met the standard criteria for continued detention at the Center, she was released on April 28, 2010, and returned to general population at Bedford Hills. (Id. ¶¶ 78, 84.) In her discharge summary, Plaintiff was described as cooperative, obedient, eating and sleeping regularly, socializing with peers, and participating appropriately in programs and with no concerns or behavioral issues. (Id. ¶ 79; Clark Decl., Ex. B; Med. 61.) The discharge summary noted, however, that "her presentation was superficial, and she had no insight into her defensive tendency to attribute all of her problems to others. Patient did not accept patient education, and did not accept medication education along with education about major risks and benefits of pharmacotherapy. She refused to take medication throughout her admission. She contested her hospitalization at [the Center]." (Def. Stat. ¶¶ 80-83; Clark Decl., Ex. B; Med. 61.)

B. Defendants Michael Miller, Ella Anderson, Robin Trotter, Joseph Plowden, and Valerie Bryant Are Entitled to Summary Judgment Dismissing Count 1.

1. Count 1 Was Exhausted.

Defendants do not argue that Plaintiff failed to exhaust this claim. Therefore, I will deem Count 1 exhausted for the purposes of this motion for summary judgment.

2. Plaintiff Fails to Raise Any Genuine Issue of Material Fact: She Was Not Subjected to Excessive Force

"Not every malevolent touch by a prison guard gives rise to a federal cause of action." Wilkins v. Gaddy, 559 U.S. 34, 36 (2010) (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992)) (internal quotation omitted). Indeed, prison administrators should be given "wide-ranging deference" to pursue policies that, in their judgment, are necessary "to preserve internal order and discipline and to maintain institutional security." Whitley v. Albers, 475 U.S. 312, 321 (1986). "The infliction of pain in the course of a prison security measure, therefore, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense." Whitley, 475 U.S. at 319.

"The test of whether use of force in prison constitutes excessive force contrary to the Eighth Amendment is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (citing Hudson, 503 U.S. at 7); see also Wilkins, 559 U.S. at 37. Courts must examine several factors to determine whether defendants acted maliciously, including: the severity of the injury inflicted; the mental state of the defendant; the need for force; the nexus between that need and the amount of force used; the threat reasonably perceived by the defendant; and any efforts by the defendant to temper the severity of the force. See id.; Hudson, 503 U.S. at 7. Additionally, "[t]he Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Wilkins, 559 U.S. at 37-38 (internal quotations omitted).

Plaintiff alleges that she was subjected to excessive force three times on April 8, 2010: (1) while she was forcibly changed into a smock during her transfer to an observation cell; (2) when she was searched forcibly after she tore her mattress to shreds and attempted to flood her cell; and (3) when she was forcibly injected with Zyprexa. In fact, the undisputed evidence demonstrates that she was never subjected to excessive force on that day.

First, she alleges that excessive force was used to change her into an observation cell smock. The undisputed facts show that smocks are standard procedure for a psychiatric prisoner like Plaintiff, and that Plaintiff refused to follow a direct order and change into a smock. The officers thus were privileged to use as much force as was necessary to get Plaintiff into appropriate clothing. The officers were not required to allow Plaintiff to change herself after she refused a direct order to do so. There is no evidence that they used more force than was required; it bears noting that Plaintiff's only injury was a small abrasion, which negates any suggestion that the force used was excessive.

Second, Plaintiff argues that excessive force was used to search her for concealed cotton. But there is no evidence that the use of force was anything but de minimis given Plaintiff's refusal to cooperate with the direct orders of prison officers. Plaintiff does not dispute that she had torn up her mattress and tried to hide herself from the view of supervising corrections officers; the officers were privileged to search her in order to ascertain whether Plaintiff was hiding cotton from her mattress on her person. The fact that her private parts were viewed by a corrections officer is of no moment: "Strip searches generally have been upheld as a reasonable security measure within a correctional facility even in the absence of probable cause as long as they are related to a legitimate penological goal." Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 510 (S.D.N.Y. 2008). This is true even for relatively invasive strip searches. See, e.g., Covino v. Patrissi, 967 F.2d 73, 79 (2d Cir. 1992). As well, "occasional, indirect, or brief viewing of a naked prisoner by a guard of the opposite sex does not infringe on an inmate's right to privacy; only "regular and close viewing" is prohibited. See Correction Officers Benev. Ass'n of Rockland County v. Kralik, No. 04 Civ. 2199, 2011 WL 123635, at *11 (S.D.N.Y. Mar. 30, 2011).

Here, Plaintiff was creating a security risk by tearing apart her mattress and trying to use its contents to shield herself from the view of corrections officers who had a legitimate right to observe her. Ascertaining that Plaintiff did not have the means to obstruct their view is a legitimate penological goal, which fully justifies the brief visual inspection of Plaintiff's genitalia.

Finally, Plaintiff claims that excessive force was used to inject her with an antipsychotic medication. Plaintiff offers absolutely no evidence to support this claim. She does not dispute that antipsychotic medication was prescribed for her, or that she refused to take it orally; neither does she offer the slightest evidence that she was restrained more than was necessary to allow a nurse to safely administer her medication by injection, which she was resisting, or that she suffered an injury as a result.

Accordingly, Plaintiff fails to raise any genuine issue of material fact in support of her contention that she was subjected to excessive force on April 8, 2010. Defendants' motion for summary judgment dismissing this claim is granted.

C. Allegations Relating to Count 2: Excessive Uses of Force on April 3, 2010 and May 24, 2011

In Count 2, Plaintiff complains of two other instances when she was subjected to excessive force. Plaintiff links these two incidents because Corrections Officer Keenan Derry was involved in both of them.

The first incident occurred on April 3, 2010, when Plaintiff was being escorted through Bedford Hills along with twelve keeplock inmates to take part in an hour of scheduled recreation. (Def. Stat. ¶ 14.) While the other inmates stood in a straight line, Plaintiff stepped out of the line. (Id. ¶ 15.) Officer Derry ordered Plaintiff to get back in line. (Id. ¶ 16.) Plaintiff alleges that she did not hear Officer Derry's directions because other inmates were talking loudly, and that, since she had never gone to recreation from keeplock before, she did not know there was a particular way that inmates had to walk. (Harris Dep. 182:20-183:11.) She also states that a fellow inmate told her that Officer Derry was directing Plaintiff to get back in line, and that she then turned around and said, "Okay, I didn't hear you," and got back in line. (Harris Dep. 183:12-18.) According to Defendants, however, Plaintiff responded to Officer Derry's orders by telling him, "Stop being an asshole to me," and, "You're acting like a dick to me." (Def. Stat. ¶ 17; Clark Decl., Ex. C.) She refused to get back in line, and repeatedly cursed Officer Derry. (Def. Stat. ¶ 18.) Defendants allege that Plaintiff told Officer Derry, "You're an asshole," and eventually stepped back into line after several direct orders. (Derry Aff. ¶ 8.)

At that point, Officer Derry ordered Plaintiff to step away from the other inmates and place her hands on the wall—to which, according to Defendants, Plaintiff replied, "Fuck you, I'm not doing that." (Def. Stat. ¶ 20.) According to Plaintiff, however, she got out of line and asked, "What did I do? I didn't hear you." (Harris Dep. 183:19-21.) The other inmates started laughing, joking, and getting excited. Officer Derry continued to order Plaintiff to put her hands on the wall, but she crossed her hands, refused, and kept cursing him. (Id. ¶ 20.) Plaintiff states that she refused to turn around against the wall because Officer Derry threatened to "smash [her] fucking face against the wall" and, after she voiced her concern, to "fuck [her] up and smash [her] face." (Harris Dep. 183:22-184:20.) She alleges that she was continuously asking for someone to call Captain Hammond or a sergeant because she was afraid of Officer Derry. Harris Dep. 183:22-184:20. Officer Derry felt the situation was unsafe, and an area supervisor and escort were called to assist. (Id. ¶ 21.)

Once the two officers arrived, Plaintiff put her hands on the wall. (Id. ¶ 22.) As Officer Derry prepared to handcuff her, he told her that if she got off the wall, it would be interpreted as an act of aggression and force would be used. (Id. ¶ 23.) Plaintiff began to rock backwards toward Officer Derry. (Id. ¶ 24.) He ordered her to stop rocking backward, and placed his right hand in the center of her back to prevent her from making contact with him. (Id. ¶ 25.) He then took her wrists, put her arms behind her back, and handcuffed her; she was then returned to her cell. (Id. ¶¶ 26-27.)

Plaintiff, however, alleges that after she turned around, Officer Derry grabbed her wrists "really hard" and pushed her against the wall, twisting her arms. (Harris Dep. 185:2-4.) She started yelling and asked Officer Shavoe (one of the officers who had been called for) to get Officer Derry away from her. She alleges that the two officers were arguing back and forth, and that Officer Shavoe pushed Officer Derry away because Officer Shavoe saw that Officer Derry was being too rough with Plaintiff. (Harris Dep. 185:5-12.)

After the incident, a Use of Force Report was completed. Resident Nurse Janet D'Ausilio reported that Plaintiff had redness on her right wrist, approximately one inch in length, and that the skin was intact despite swelling. (Def. Stat. ¶ 28.) No other injuries were noted or reported. (Id.) According to Plaintiff, pictures were taken of her wearing nothing but underwear and a bra. (Harris Dep. 185:17-22.)

This is the incident that precipitated the misbehavior report that led to the events of April 8, 2010, which are the subject of Count 1.

The second incident alleged in Count 2 occurred on May 24, 2011, when after attending a disciplinary hearing for a separate misbehavior ticket, Plaintiff was sent to the "disciplinary bullpen" until it was time for her to return to her cell. (Def. Stat. ¶¶ 85-86.) When ordered to return to her cell with Officer Derry, she refused, claiming that Captain Lawrence Hammond had previously prohibited Officer Derry from escorting her and that she was afraid of him. (Id. ¶¶ 87-88; Harris Dep. 245:5-8.) When Sergeant Diane Curra asked Plaintiff if there was anything in her file to support this, Plaintiff had no answer. (Def. Stat. ¶ 89.) Sergeant Curra then ordered Plaintiff to leave with Officer Derry, but Plaintiff continued to refuse. (Id. ¶ 90.) Lieutenant John Vallo was summoned. Once he arrived, he asked Plaintiff if there was anything in writing to confirm that Officer Derry had been prohibited from escorting her; Plaintiff acknowledged that she did not know. (Id. ¶¶ 91-92.) Lieutenant Vallo then ordered her to return to her cell with Officer Derry, but again, Plaintiff refused. (Id. ¶ 93.)

There was a bench in the disciplinary bullpen, and Plaintiff "got behind the bench and sat under [it], behind it, and locked [her] legs." (Id. ¶ 94.) Lieutenant Vallo told Plaintiff that if she continued to disobey, she would be sent to the Special Housing Unit ("SHU"). (Id. ¶ 95.) Plaintiff then got up and agreed to be escorted back. (Harris Dep. 246:13-17.) On her way out, she bumped into Officer Cynthia McCants, who was blocking the exit. (Id. ¶ 96.) Defendants allege that Plaintiff attempted to push past Officer McCants, who was standing in the doorway to stop her. (Id. ¶ 97.) Plaintiff denies that she attempted to get past Officer McCants to leave, and claims that, because she had her head down, she did not see Officer McCants and it was an accident. (Harris Dep. 246:18-247:9.)

Lieutenant Vallo then ordered Plaintiff to be sent to the SHU, but Plaintiff refused and started screaming; she then purposely collapsed to the floor and refused to get up. (Def. Stat. ¶¶ 99-100.) Officer Derry, Officer McCants, and an unnamed officer carried her away, and she began screaming, "They are going to kill me. They are going to kill me." (Id. ¶ 100.) Plaintiff claims that while she was being carried, Officer Derry started punching her in the back, "kind of on the down low so nobody really can see." (Id. ¶ 101.)

Plaintiff refused to let DOCCS take pictures of her at the SHU, claiming that "the only thing that is wrong with me, my knees are scraped up and my arms." (Id. ¶ 102.) In particular, she refused to get undressed and have pictures taken of her back, although she said, "You can check my back, because he punched me in the back." (Id. ¶ 103; Harris Dep. 252:9-11.) Plaintiff states that she refused to have pictures taken because she was afraid to have pictures of her in her underwear on public record. (Harris Dep. 252:2-7.)

Upon arrival at the SHU, Plaintiff met with DOCCS psychiatrist Dr. Steven Gross. (Def. Stat. ¶ 104.) Dr. Gross temporarily sent Plaintiff to an observation cell before sending her to a SHU cell. (Id. ¶ 105.)

1. Count 2 Is Dismissed For Failure to Exhaust Administrative Remedies.

Count 2 encompasses two separate and discrete instances in which plaintiff contends she was subjected to excessive force. She did not exhaust her administrative remedies as to either.

Defendants provide proof of Plaintiff's failure to properly exhaust her administrative remedies as to her entire second legal claim against Officer Keenan Derry, regarding a handcuffing incident on April 3, 2010 and a use of force incident on May 24, 2011. After reviewing DOCCS records, Defendants assert that plaintiff did not take an appeal from any grievance she filed with respect to either of these incidents. Beyond the conclusory statement in her initial complaint that she had exhausted "ALL" of her administrative remedies for each of her claims, Plaintiff does not provide a smidgen of proof that challenges defendants' evidence. At the summary judgment stage, reliance on the allegations of her complaint is insufficient to rebut Defendants' evidence of non-exhaustion.

Accordingly, Count 2 is dismissed for failure to exhaust administrative remedies.

D. Allegations Relating to Count 3: Various Incidents Involving Officer Lakesha Bell between August 2011 and September 2011

In Count 3, Plaintiff alleges two instances of verbal harassment, an instance of attempted use of force, and deprivation of water—a potpourri of claims against Corrections Officer Lakesha Bell. All of these incidents are linked by the purported participation of Officer Bell.

Defendants appear to have overlooked this claim in their responsive papers. Therefore, the following facts are drawn exclusively from Plaintiff's materials and are deemed true.

On August 9, 2011, Officer Lakesha Bell approached Plaintiff's cell and verbally assaulted and harassed her. (Harris. Decl. ¶ 158.) Allegedly, Officer Bell then "yell[ed] out" that Plaintiff had thrown a liquid substance on her, before running away and laughing. (Id. ¶ 159.) Several other prisoners who witnessed the incident insist that nothing was thrown, that Officer Bell was not wet, and that there was no liquid on the ground or around Plaintiff's cell. (Id. ¶ 160-61, 64; Vogelfang Aff., p. 3; Gamble Aff.)

To the extent Plaintiff is testifying about what other people said, her testimony would be hearsay and not admissible to create a genuine issue of fact. However, she has submitted sworn statements from two other prisoners about what they saw and heard, which is admissible.

Plaintiff testified that she was falsely given a misbehavior report for this incident. (Harris Decl. ¶ 161.) Subsequently, a clear shield was placed in front of her cell door. Plaintiff also averred that the water was shut off in her cell; another prisoner confirmed this in her affidavit, saying that plaintiff's water was turned off "for endless days." (Id. ¶ 162; Vogelfang Aff., p. 3-4.)

On August 18, 2011, Plaintiff alleges that while she was being escorted by Officer Bouchereau, Officer Bell verbally assaulted Plaintiff by making gestures and calling her a "retard." (Harris Decl. ¶ 165.) While she was getting on the elevator, Officer Bell attempted to assault Plaintiff "at least 3 times"; Officer Bell had to be restrained by other officers each time. (Id. ¶ 166-67.)

Plaintiff reported the incident to Sergeant Jeffrey Rorick and Lieutenant Dubrey. (Id. ¶ 168.) Plaintiff later received a misbehavior ticket authored by Officer Bell, but this disappeared from her record with no hearing. (Id. ¶ 171.)

On September 11, 2011, Officer Bell worked on Plaintiff's unit. (Id. ¶ 173.) While Plaintiff was getting ready for recreation, she saw Officer Bell start to pat frisk inmates from the front of the unit. (Id.) Afraid to have Officer Bell touch her, she asked Officer Oglesby if she could be pat frisked by Officer Jenkins instead. (Id. ¶ 174.) According to Plaintiff, he laughed out loud and said that he did not care, though Officer Jenkins agreed to pat frisk Plaintiff. (Id. ¶ 175.) But when Officer Jenkins went to pat frisk her, Officer Bell screamed out, "No, let me do it!" (Id. ¶ 176.) Plaintiff refused to let Officer Bell pat frisk her, and yelled out for a sergeant. (Id. ¶ 177.) She was directed to return to her cell, and Sergeant Fusco arrived a few minutes later. (Id. ¶ 178.) He told Plaintiff that she had forfeited her recreation time because she refused to have Officer Bell pat frisk her—even though, Plaintiff alleges, he was aware of her fear of Officer Bell and that Officer Bell had tried to assault Plaintiff before. (Id. ¶ 179.)

Plaintiff states that she received a misbehavior report from Officer Bell for this incident, but that the report disappeared and no hearing was held. (Id. ¶ 180.)

On September 13, 2011, Plaintiff claims that Officer Oglesby tried to convince Officer Bell to work on Plaintiff's housing unit again, and Officer Bell agreed to do so. (Id. ¶ 181.) When Officer Bell worked on Plaintiff's unit, Plaintiff never came out of her cell and she refused to take a tray from Officer Bell because she was afraid that coming into contact with Officer Bell would result in another false misbehavior report. (Id. ¶ 182.)

1. Count 3 Is Dismissed In Part For Failure to Exhaust Administrative Remedies.

Again, Plaintiff complains of several discrete incidents, each of which is subject to the exhaustion requirement.

Defendants provide proof of Plaintiff's failure to exhaust her administrative remedies with respect to the following elements of Count 3: the events of August 18, 2011 (including specifically the "three assaults" that allegedly occurred while Plaintiff was getting onto the elevator), and September 13, 2011. DOCCS records reveal that Plaintiff failed to appeal from the denial of any grievances she may have filed with respect to those incidents. As Plaintiff offers no evidence to counter this proof, those aspects of her claim are dismissed for failure to exhaust.

Defendants do not offer any proof that Plaintiff failed to exhaust the other incidents comprising Count 3, and I will deem them exhausted for purposes of this motion for summary judgment.

2. Summary Judgment Is Granted in Favor of Officer Lakesha Bell on Claim 3.

Plaintiff claims that Officer Lakesha Bell verbally harassed her, especially on August 9, 2011. That does not establish any constitutional violation. Even "vile and abusive language . . . no matter how abhorrent or reprehensible, cannot form the basis for a § 1983 claim." Zeno v. Cropper, 650 F. Supp. 138, 141 (S.D.N.Y. 1986); see also Malsh v. Austin, 901 F. Supp. 757, 763 (S.D.N.Y. 1995) (citing Wright v. Santoro, 714 F. Supp. 665, 667 (S.D.N.Y. 1989), aff'd, 891 F.2d 278 (2d Cir. 1989)).

Plaintiff also alleges that she was "continuously" denied water after her altercation with Officer Bell on August 9. Fellow inmate Annette Vogelfang also submitted an affidavit corroborating this claim and averring that the water was turned off for days at a time in Plaintiff's cell.

The denial of water can rise to the level of a constitutional violation, but does not do so automatically. Conditions that are "restrictive and even harsh" are "part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). But although "the Eighth Amendment's prohibition against cruel and unusual punishment does not mandate comfortable prisons . . . the conditions of confinement must be at least humane." Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (internal quotations and citations omitted). "In order to establish a violation of his Eighth Amendment rights, an inmate must show (1) a deprivation that is objectively, sufficiently serious [such] that he was denied the minimal civilized measure of life's necessities, and (2) a sufficiently culpable state of mind on the part of the defendant official, such as deliberate indifference to inmate health or safety." Id. "The deprivation of food and water during detention, if sufficiently long, meets this standard." Thomas v. Schriro, No. 10 Civ. 8787, 2013 WL 3491079, at *4 (S.D.N.Y. July 12, 2013).

While there is "no agreement among courts about what qualifies as a sufficiently long deprivation," id., Plaintiff fails to offer any evidence that she was entirely deprived of water. Assuming for argument's sake that her declaration and Vogelfang's affidavit establish that the water was turned off in Plaintiff's cell, Plaintiff does not establish that she was otherwise denied water, such as water with meals or for ablutions. Plaintiff suggests no medical injury that would necessarily have followed if she had in fact been denied water for any appreciable period of time; she offers no evidence of dehydration, for example. Instead, the evidence she offers focuses on the corrections officers' attempt to keep Plaintiff from throwing liquids outside her cell—which is not an authorized or appropriate use of water.

Additionally, Plaintiff offers no evidence that Officer Bell made the decision to turn off the water in her cell. While Plaintiff obviously believes that Bell's allegation of water throwing led to the loss of running water in her cell, there is no evidence in the record that Bell was the person who decided to turn off the running water. Absent evidence to that effect, Plaintiff does not establish that the officer had personal involvement in the alleged Eighth Amendment deprivation.

None of the Plaintiff's remaining exhausted allegations against Officer Bell even arguably rises to the level of a constitutional claim.

Accordingly, summary judgment is granted in favor of Defendants on Count 3 against Officer Lakesha Bell.

E. Allegations Relating to Count 4: Improper Cell Search on September 14, 2011

In Count 4, Plaintiff alleges a single instance where her cell was improperly searched and her legal work was tampered with. The facts relating to that incident are as follows:

Plaintiff alleges that on September 14, 2011, her cell was searched by Officers Kesha Slade and Michael Jordan. (Def. Stat. ¶ 106) During this cell search, they opened her legal mail and mixed up her paperwork. (Harris Dep. 299:14-300:19.) Plaintiff was not present when the cell search is alleged to have taken place. (Id. ¶ 107.) She claims that this search was conducted to retaliate against her for having filed several grievances against officers in the TBU, as well as filing this § 1983 suit.

1. Count 4 Was Exhausted.

Defendants do not argue that Plaintiff failed to exhaust this claim. Therefore, I will deem Count 4 exhausted for the purposes of this motion for summary judgment.

2. Standard for Cell Searches

Periodic cell searches are so much an integral part of prison life that in Hudson v. Palmer, 468 U.S. 517, 527-28 (1984), the United States Supreme Court held that a prisoner has no reasonable expectation of privacy in his prison cell. Even cell searches "conducted solely for harassment" do not implicate the Fourth Amendment. Willis v. Artuz, 301 F.3d 65, 68-9 (2d Cir. 2002); see also Salahuddin v. Mead, No. 95 Civ. 8581, 2002 WL 1968329, at *5 (S.D.N.Y. Aug. 26, 2002) (citing cases that dismissed claims based on arbitrary or retaliatory cell searches). The only constitutional limit on the search of a prison cell is imposed by the Eighth Amendment's bar against cruel and unusual punishment. If a cell search qualifies as cruel and unusual punishment—that is, if the cell search lacked any legitimate penological interest and was intended solely to harass—then it may be actionable. See Lashley v. Wakefield, 367 F. Supp. 2d 461, 470 (W.D.N.Y. 2005).

To prove an Eighth Amendment violation, a prisoner plaintiff must establish that a defendant "ordered the searches with the specific intent to cause plaintiff harm and that the searches in fact caused him harm." Id. (citing Hudson, 503 U.S. at 7-8). The deprivation alleged by the prisoner must be sufficiently serious in objective terms such that it suggests denial of the minimal civilized measure of life's necessities (the objective element). And because only the unnecessary and wanton infliction of pain implicates the Eighth Amendment, the prisoner must assert facts indicating that the responsible prison official had a sufficiently culpable state of mind amounting to at least deliberate indifference to his constitutional rights (the subjective element). The absence of evidence tending to support either the objective or the subjective element is fatal to a prisoner's Eighth Amendment claim. See Hudson v. Lockhart, 554 F. Supp. 2d 494, 497 (S.D.N.Y. 2008).

"It is now established beyond doubt that prisoners have a constitutional right" to adequate, effective, and meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817, 821, 822, (1977). Thus, "Interference with legal mail implicates a prison inmate's rights to access to the courts and free speech as guaranteed by the First and Fourteenth Amendments . . . ." Davis, 320 F.3d at 351. To sustain a claim for denial of access to the courts as a result of prison official's interference with her legal mail, a plaintiff "must allege that the defendant took or was responsible for actions that hindered a plaintiff's efforts to pursue a legal claim." Id. (internal quotations and citations omitted). That is, the actions must have "resulted in actual injury to the plaintiff such as the dismissal of an otherwise meritorious legal claim." Lewis v. Casey, 518 U.S. 343, 353 (1996) (emphasis added).

Retaliation is actionable in certain circumstances precisely because it can chill the exercise of constitutionally protected rights. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996); Colon, 58 F.3d at 872; Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988). However, as retaliation claims by prisoners "are prone to abuse since prisoners can claim retaliation for every decision they dislike," Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996), courts have been cautioned to approach First Amendment retaliation claims by prisoners with skepticism and particular care. Davis, 320 F.3d at 352. Nonetheless, a First Amendment retaliation claim can survive summary judgment if plaintiff shows: "(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." Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N .A., 534 U.S. 506 (2002). It is well settled that the filing of a prison grievance is a protected activity. Id.

The second prong requires the defendant to have taken adverse action. In the prison context, "Only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation." Dawes, 239 F.3d at 493; see Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003). The adverse action inquiry is a contextual one. Davis, 320 F.3d at 353. Courts should also bear in mind that prisoners may be required to tolerate more than average citizens, before a retaliatory action taken against them is considered adverse." See id.

The third prong of the retaliation test requires a causal connection between the protected speech and the adverse action. Circumstantial evidence of causation may exist where the adverse action occurs soon after the protected activity. Colon, 58 F.3d at 872.

3. Summary Judgment Is Granted in Favor of Defendants on Count 4 Against Officers Kesha Slade and Michael Jordan.

Plaintiff claims that her cell was searched by Officers Kesha Slade and Michael Jordan as a form of harassment. There are two reasons why this allegation is insufficient to sustain a § 1983 claim. First, inmates have no constitutional protection from cell searches, even when they are conducted for retaliatory reasons. See Hudson, 468 U.S. at 527-28; see also Willis, 301 F.3d at 68-9. Second, even if retaliation claims were applicable to cell searches, Plaintiff's own filing clearly establishes that she was not deterred from exercising her constitutional rights, as she continued to file grievances and pursue this lawsuit after the cell search took place.

Nor does the search rise to the level of cruel and unusual punishment. At best, Plaintiff complains of a single cell search by these officers, and gives no indication that she was subject to an atypical frequency of searches given her place of incarceration. She has not alleged that the search was such a departure from the norm as to be greater than a de minimis disruption.

Plaintiff also claims that her legal work was opened and her paperwork was mixed up during the search of her cell. Legal work papers are unquestionably a special type of prisoner property; however, the fact that her cell contained legal papers does not insulate plaintiff from a search. And while the "inconvenience [of destroyed law work] is understandably frustrating, it does not violate a constitutional right" unless it actually deprives Plaintiff of access to the courts—of which there is no evidence in the record. Smith v. O'Connor, 901 F. Supp. 644, 649 (S.D.N.Y. 1995) (citing Jermosen v. Coughlin, No. 89 Civ. 1866, 1995 WL 144155, at *4 (S.D.N.Y. Mar. 30, 1995); see also Davis, 320 F.3d at 346; Herrera v. Scully, 815 F. Supp. 713, 725 (S.D.N.Y. 1993)).

Accordingly, summary judgment is granted in favor of Defendants on Claim 4 against Officers Kesha Slade and Michael Jordan.

F. Allegations Relating to Count 5: Excessive Use of Force on November 4, 2011

In Count 5, Plaintiff complains of yet another instance in which she was allegedly subjected to excessive force. The facts relating to that incident, viewed most favorably to Plaintiff, are as follows:

On November 4, 2011, while in the TBU, Plaintiff was attending a group arts and crafts therapy session with other TBU inmates. (Def. Stat. ¶ 113.) Because she was a Phase 1 TBU inmate, she was required to sit in a restraint chair, which meant wearing shackles on her legs. (Id. ¶ 114.) According to Plaintiff, she was having a conversation with Officer James Hardy during this session about a grievance she had filed against him. (Id. ¶ 115.) When he got up from his seat and left the room, she took a drawing he was working on, wrote something like "40 year-old officer writing graffiti" on it, and hid it under her notebook. (Id. ¶ 116; Harris Dep. 321:17-21, 332:18-22.) When Officer Hardy returned and asked about the drawing, Plaintiff told him that she threw it in the trash. (Def. Stat. ¶ 117.)

When the session was close to ending, Officer Hardy left the room once more, and Plaintiff put the drawing back on his table. (Harris Dep. 322:10-16.) Following the session, the inmates were going to receive commissary. Plaintiff was to go last and was kept in the room, still shackled to her chair. (Id. 322:17-323:2.) She felt "something was going on," so she begged Officer Bouchereau to get her out of the chair and escort her back to her cell. (Id. 323:2-12.) Instead, Officer Hardy returned to the room with Plaintiff and closed the door. (Id. 323:13-17.) He got angry and yelled at her, asking why she took his picture and complaining that she had embarrassed him. (Id. 323:17-25.) Plaintiff started yelling, too, and begged Sergeant Jeffrey Rorick, who was standing outside the door, to get her out of the situation. (Id. 324:4-9.) At this point, Officer Hardy allegedly grabbed Plaintiff's notebook and began ripping out pages. (Id. 324:13-17; Def. Stat. ¶ 117.) Plaintiff kept yelling for Sergeant Rorick and Dr. Gross; finally, Officer Lynda Hunter came into the room and Plaintiff was unchained from the chair, handcuffed, and taken back to her unit as she continued to scream. (Harris Dep. 324:24-325:12.)

Once they arrived at her cell, Plaintiff was told to sit down so that the officers could remove the shackles from her legs. She responded, "You guys know that I never sit down, because I feel like I'm going to fall." (Def. Stat. ¶ 121.) Instead, she stood up and kept yelling. (Id.) Sergeant Jeffrey Rorick ordered Plaintiff to "shut up" and stop resisting, to which she replied that she was not resisting—a sentiment echoed by the other inmates. (Id. ¶ 122; Harris Dep. 326:11-22.) Officer Hardy then took Plaintiff's hands and put them behind her, through the slot in the prison cell door, while Sergeant Rorick told her to stop resisting. (Def. Stat. ¶ 123.) Plaintiff kept saying that the officers were hurting her, and begged them to stop. (Harris Dep. 326:8-9, 327:17-22.)

Unlike the incident with the water in her cell, Plaintiff does not submit any affidavits from other prisoners to support this particular allegation; her testimony about what other prisoners observed is, in this instance, hearsay, and inadmissible to create a genuine issue of fact.

When a Phase 1 TBU inmate is returned to her cell, it is standard procedure to put her into the cell without taking the handcuffs off. Then, from outside of the cell, the officer directs the inmate to put her hands through the slot in the cell door, so that the officer can detach the inmate's handcuffs. (Def. Stat. ¶¶ 124-25.)

Plaintiff did not remember how long she was restrained, but stated that it was "probably less than five minutes." (Id. ¶ 126.) She claims that the handcuffs gave her a two-inch laceration, and that her wrists were bleeding. (Id. ¶ 127.) She also claims that she screamed for medical attention for between 45 minutes and an hour before Sergeant Bouchereau came and escorted her to the emergency clinic. (Harris Dep. 328:10-329:8.) Her wrists were examined by a nurse and treated with ointment. (Def. Stat. ¶ 128.)

1. Count 5 Is Dismissed In Part For Failure to Exhaust Administrative Remedies.

There are two defendants on Count 5: Officer James Hardy and Sergeant Jeffrey Rorick.

Defendants offer DOCS records to establish that Plaintiff failed to complete the grievance process with respect to her claim against Officer Hardy. Plaintiff offers no countervailing evidence that would raise a genuine issue of fact concerning exhaustion of administrative remedies.

Because Plaintiff failed to exhaust part of her claim, Count 5 is dismissed as to Officer Hardy.

Defendants do not argue that Plaintiff failed to exhaust this claim as to Sergeant Rorick. Therefore, I will deem the remainder of Count 5 exhausted for the purposes of this motion for summary judgment.

2. Summary Judgment Is Granted in Favor of Defendants on Count 5 Against Sergeant Jeffrey Rorick.

Plaintiff does not allege any uses of force by Sergeant Rorick. Rather, his involvement was limited to observing the actions taken by Officer Hardy and telling Plaintiff to cooperate with his instructions.

While deliberate indifference to the unconstitutional acts of other officers can support a § 1983 claim, Officer Hardy committed no unconstitutional act. His use of force was entirely de minimis; he did only what was necessary to remove Plaintiff's handcuffs despite her refusal to cooperate, resulting in a minor injury that was treated with ointment. This is insufficient to state a deliberate indifference claim against Sergeant Rorick.

Plaintiff's claim of deliberate indifference on the part of Sergeant Rorick to her serious medical needs also fails. First, Plaintiff fails even to plausibly allege that her wrist injury was an objectively serious medical need as required by the Eighth Amendment. See Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006); Chatin v. Artuz, 28 F. App'x 9, 10 (2d Cir. 2001). Second, even if I were to conclude that her injury was sufficiently serious, she also fails to offer evidence that Sergeant Rorick was subjectively aware of, and consciously disregarded, an excessive risk to Plaintiff's health and safety; she received medical attention within an hour, and the treatment given strongly suggests that her health and safety were never at risk. See Salahuddin, 467 F.3d at 280.

Accordingly, summary judgment is granted in favor of Defendants on Count 5 against Sergeant Jeffrey Rorick.

G. Allegations Relating to Count 6: Improper Cell Searches on October 24, 2009 and November 12, 2009

In Count 6, Plaintiff points to two more instances in which her cell was allegedly subjected to an improper search, resulting in tampering with her legal documents—both times by Officer Latisha Simmons.

On October 24, 2009, Plaintiff's cell was searched by Officer Simmons. At the time, Plaintiff lived in a general population dormitory consisting of approximately 72 inmates, and she shared a "cube" with another inmate. (Harris Dep. 365:12-16, 375:13-19.) In the dormitory, between one and two cells were searched each day. (Def. Stat. ¶ 6.)

Plaintiff alleges that during the cell search, Officer Simmons poured shampoo and baby oil on Plaintiff's personal and legal documents. (Id. ¶ 4.) According to Plaintiff, two fellow inmates wrote statements saying that they saw Officer Simmons destroy Plaintiff's cell; however, these statements have disappeared, and Plaintiff was allegedly told that no such statements ever existed. (Harris Decl. ¶ 19; Harris Dep. 363:3-12.)

On October 27, 2009, Plaintiff received a misbehavior report and was transferred from the general population dormitory to a general population cell in a subdivision of approximately 30 cells. (Harris Decl. ¶ 24; Harris Dep. 375:3-12.) She was put into an individual cell. (Harris Dep. 376:3.) In the subdivision, a cell was searched every day. (Def. Stat. ¶ 3.)

On November 12, 2009, Officer Simmons again searched plaintiff's cell. During this search, Officer Simmons "threw [Plaintiff's] paperwork around, she threw [Plaintiff's] clothes around, she threw everything around, like a tornado." (Id. ¶ 7.) Plaintiff claims that Officer Kerry Smith had switched work assignments with Officer Simons so that the latter could search her cell again. (Id. ¶ 8.) Plaintiff also alleges that later the same day, Officer Smith attempted to conduct an "unauthorized cell search," which Officer Smith knew was unauthorized "because [Smith] knew [Plaintiff's] cell wasn't supposed to be searched that night." (Def. Stat. ¶ 9; Harris Dep. 377:6-380:16.)

1. On This Record, Defendants Have Not Established Plaintiff's Non-Exhaustion of Count 6.

Defendants allege that Plaintiff failed to appeal from the denial of a grievance relating to a cell search on October 24, 2009, which she had filed against Officer Lakesha Bell. However, according to the complaint, the search on this date was allegedly conducted by Officer Latisha Simmons. Defendants may well be able to establish that Plaintiff never filed a grievance against Office Simmons, but they have not done so on the record before the Court. I will, therefore, deem Count 6 exhausted, albeit only for the purposes of this motion for summary judgment.

2. Summary Judgment Is Granted in Favor of Defendants on Count 6 Against Officer Latisha Simmons.

Plaintiff offers no evidence tending to suggest that Officer Simmons was engaged in anything other than standard penological searches on the two occasions in question. While she offers evidence of behavior by the officer that raises questions of professionalism, such as pouring shampoo on Plaintiff's personal belongings—evidence that, for the purposes of this motion, I will accept as true—she offers no evidence tending to suggest either: (1) that Officer Simmons ordered the searched with the specific intent to harm plaintiff; or (2) that the search was conducted in a manner that suggests denial of the minimal civilized measure of life's necessities. Nor does she offer any evidence tending to suggest that Officer Simmons conducted the searches with deliberate indifference to plaintiff's constitutional rights—which, as discussed above, do not include a right to be free from the periodic cell searches that are a normal incident of incarceration. The lack of evidence to support any one of these elements is fatal to plaintiff's Eighth Amendment search claim; here, there is no evidence to support any of them.

Again, Plaintiff also claims that her legal work was tampered with or destroyed during the searches. Her allegations against Officer Simmons bespeak an unfortunate lack of professionalism on the part of the officer. However, as noted above, while the "inconvenience [of destroyed law work] is understandably frustrating, it does not violate a constitutional right" for Plaintiff's work to be destroyed. Smith v. O'Connor, 901 F. Supp. 644, 649 (S.D.N.Y. 1995) (citing Jermosen v. Coughlin, No. 89 Civ. 1866, 1995 WL 144155, at *4 (S.D.N.Y. Mar. 30, 1995); Herrera v. Scully, 815 F. Supp. 713, 725 (S.D.N.Y. 1993)).

Accordingly, summary judgment is granted in favor of Defendants on Count 6 against Officer Latisha Simmons.

H. Allegations Relating to Count 7: Mail Issues between November 2009 and February 2010

In Count 7, Plaintiff alleges that between November 2009 and February 2010, there were several issues with her mail. The undisputed facts relating to those incidents, viewed most favorably to Plaintiff, are as follows:

First, she claims that on an unspecified date in that period, Officer Smith refused to give her a Vogue magazine that Plaintiff believed was in her mail. (Def. Stat. ¶ 10.) When Plaintiff went to send mail the following morning, she asked the overnight officer to look in her mailbox. (Harris Dep. 381:16-25.) The officer found a Vogue magazine in her mailbox and gave it to her. (Id. ¶ 11.)

Plaintiff also alleges that her personal mail, which consisted of magazines, was found hidden under books and behind boxes on at least three occasions. (Id. ¶ 12.) Plaintiff does not assert that she failed to receive any specific, identifiable pieces of mail during this period. (Id. ¶ 13.)

1. Count 7 Was Exhausted.

Defendants do not argue that Plaintiff failed to exhaust this claim. Therefore, I will deem Count 7 exhausted for the purposes of this motion for summary judgment.

2. Summary Judgment Is Granted in Favor of Defendants on Count 7.

A prisoner has a First Amendment right to the "free flow of incoming and outgoing mail." Davis, 320 F.3d at 351. Restricting this right is only permissible if it furthers "one or more of the substantial governmental interests of security, order, and rehabilitation . . . [and] must be no greater than is necessary or essential to the protection of the particular governmental interest involved." Ahlers v. Rabinowitz, 684 F.3d 53, 64 (2d Cir. 2012) (citing Davis, 320 F.3d at 351) (internal quotation omitted).

It is clear that when dealing with legal mail, a prisoner must show that prison officials "regularly and unjustifiably interfered with the incoming legal mail." Id. However, the Second Circuit has not articulated the contours of the test for non-legal mail, stating only that "interference with non-legal mail . . . is more readily justifiable than interference with so-called legal mail." Id. At least some courts have suggested that to "establish a claim for interference with regular, non-legal mail in violation of the First Amendment, an inmate 'must show a pattern and practice of interference that is not justified by any legitimate penological concern.'" Singleton v. Williams, No. 12 Civ. 02021, 2014 WL 2095024, at *3 (S.D.N.Y. May 20, 2014) (quoting Cancel v. Goord, No. 00 Civ. 2042, 2001 WL 303713, at *6 (S.D.N.Y. Mar. 29, 2001)).

Plaintiff claims that she experienced short delays in receiving non-legal mail, mainly magazines, but does not allege any instance where she did not eventually receive her mail. Allegations of "relatively short term delays, absent any further allegations indicating that the mail was stolen or tampered with, do not alone create a cause of action." Cancel v. Goord, No. 00 Civ. 2042, 2002 WL 171698, at *3 (S.D.N.Y. Feb. 4, 2002); see also Ahlers, 684 F.3d at 64 (holding that an allegation of eleven interferences, ranging from two to six weeks, over the course of five months was insufficient).

Accordingly, summary judgment is granted in favor of Defendants on Claim 7.

I. Allegations Relating to Count 8: Incidents While Plaintiff Was Detained in the Therapeutic Behavioral Unit from June 14, 2011 until February 14, 2012

Finally, in Count 8, Plaintiff alleges various instances of wrongdoing while she was housed in the TBU between June 2011 and February 2012. She groups all of these incidents into a single claim. The defendants identified on this claim are Sergeant Rorick, Officer Smith, and Officer Oglesby. The facts relating to those incidents are as follows:

On June 14, 2011, Plaintiff was transferred to the TBU, which is a three-phase unit for inmates diagnosed with a serious mental illness who, due to their behavior, would otherwise be serving a confinement sanction in the SHU or a separate keeplock housing unit. (Def. Stat. ¶¶ 108-09.) The TBU provides therapeutic treatment, including for mental health, to inmate-patients with a diagnosis of a serious mental illness and a disciplinary sanction exceeding 30 days. Its sole purpose is to provide mental health and behavioral interventions that enable inmate-patients to adjust to environmental demands and ultimately to be reintegrated into the prison environment. Phase 1 participants are required to abide by extensive security and environmental controls, such as being escorted in handcuffs and being confined to a "RESTART" restraint chair while in treatment programs. (Id. ¶¶ 110-12.) Plaintiff remained in the TBU until she was released from Bedford Hills on February 14, 2012.

Plaintiff alleges that various incidents occurred while she was in the TBU.

First, Plaintiff states that Sergeant Jeffrey Rorick and other unidentified officers removed the clock from the wall in her unit area. (Id. ¶ 130.) Plaintiff grieved this complaint and the clock was reinstated two weeks later. (Id. ¶ 131.)

Second, Plaintiff was prohibited from using tweezers, nail clippers, and Nair hair removal products while in the TBU. (Id. ¶ 132; Second Amended Complaint, Legal Claim #8, ¶ 3.)

Third, Pursuant to DOCCS procedures, outgoing non-legal mail must be given to the officer on the 3PM to 11PM shift. (Def. Stat. ¶ 133.) TBU inmates were directed to give their legal mail to a TBU officer. (Id. ¶ 134.) According to Plaintiff, this was a change in procedure introduced by Sergeant Rorick after Plaintiff filed her claim and lawsuit—"when things started getting heated"—as an attempt to monitor her mail. (Harris Dep. 389:10-390:7, 390:17-20.) Plaintiff claims that after the alleged change, grievances started never reaching the grievance office. (Id. 391:4-6.) Plaintiff's legal mail was in a sealed envelope before it was given to a TBU officer. (Def. Stat. ¶ 135.) Plaintiff alleges that Officer Michael Oglesby would look at the name on the outside of her envelopes before mailing them. (Id. ¶ 136.)

Fourth, Plaintiff also alleges that she was denied meals "maybe 30" times on unspecified dates while in the TBU. (Id. ¶ 137; Harris Dep. 352:21-353:2.) Plaintiff states that she would order either an alternative meal or a regular meal based on the prisoner's food menu. (Def. Stat. ¶ 138.) She would not order the regular meal selection when it was a meat item because the meat was "green," or occasionally when it was chicken, because sometimes the chicken was "slimy." (Id. ¶ 139.) Plaintiff estimates that she ordered alternative meals about 65 to 70 percent of the time. (Harris Dep. 353:3-9.) She claims that sometimes the officers would bring her a regular meal when she had ordered an alternative meal, so she would refuse to eat it. (Def. Stat. ¶ 140.) According to Plaintiff, being offered a regular meal rather than an alternative meal was the equivalent of denying her a meal. (Id. ¶ 141.)

Fifth, Plaintiff alleges that she was told by Sergeant Rorick that "he was going to get her."

Finally, Plaintiff claims that she was subject to several false misbehavior reports, although she does not identify what those reports were, who wrote them, or when they were written. Inmate Vogelfang says the same. (See Vogelfang Aff.) Vogelfang also avers Plaintiff was denied basic essentials, such as soap and writing materials (which are in fact not basic essentials for Eighth Amendment purposes), that officers retaliated against Plaintiff by harassing her because of her use of the grievance system, and that Officer Smith, in particular, harassed plaintiff on a daily basis. (See id.) All of Vogelfang's assertions are made in wholly conclusory fashion.

1. Count 8 Was At Least Partly Exhausted.

Defendants do not specifically argue that Plaintiff failed to exhaust any of the aspects of her eighth claim.

However, I cannot deem every aspect of Count 8 exhausted for the purposes of this motion for summary judgment. To the extent that Plaintiff complains about the filing of unspecified misbehavior reports by unspecified officers on unspecified dates (and she does), DOCCS officials are unable to search their records for proof of exhaustion. Similarly, to the extent that Plaintiff alleges that she was denied access to the grievance procedure while in TBU, she would have to identify the grievance that she tried to file, the date the she tried to file it, and the steps she took to comply with the grievance procedure. She does none of the above. I cannot deem these entirely non-specific allegations exhausted.

Aside from that, however, I will deem the other elements of Plaintiff's smorgasbord eighth claim exhausted—if only so I can dismiss them on the merits.

2. Summary Judgment Is Granted in Favor of Defendants on Count 8.

Plaintiff's final legal claim comprises various incidents while she was in the TBU. As noted below, none of these allegations is sufficient to state a § 1983 claim; accordingly, summary judgment is granted in favor of Defendants on Count 8.

a. Plaintiff's Transfer to the TBU Does Not Violate § 1983.

Plaintiff claims that it was improper for prison officials to transfer her to the TBU. As noted above, Plaintiff did not even bring this claim against the individuals who actually recommended or authorized her transfer. In any event, while Plaintiff clearly disagreed with the transfer, a prison official who follows an established procedure does not commit a constitutional tort under § 1983. Here, the undisputed evidence establishes that psychologist Jeanette Trujillo made the decision to transfer Plaintiff because of her medical diagnosis combined with her accumulated SHU time, and that prison procedures called for such a transfer when a prisoner had accumulated thirty days or more of time to be spent in segregated confinement and also suffers from a mental illness—as Plaintiff did. Plaintiff offers absolutely no evidence that would raise a genuine issue of fact about any of this.

b. The Removal of a Clock from Plaintiff's Unit Does Not Violate § 1983.

Plaintiff states that the clock in her unit area was removed from the wall. That hardly rises to the level of depriving Plaintiff of the minimal civilized measure of life's necessities—the objective element of an Eighth Amendment violation.

c. The Denial of Tweezers, Nail Clippers, and Nair to Plaintiff Does Not Violate § 1983.

Plaintiff was prohibited from having tweezers, nail clippers, and Nair while in the TBU, ostensibly because she refused to be oriented or take part in the TBU program "in any way."

"To state an Eighth Amendment claim based on conditions of confinement, an inmate must allege that: (1) objectively, the deprivation the inmate suffered was sufficiently serious that he was denied the minimal civilized measure of life's necessities, and (2) subjectively, the defendant official acted with a sufficient culpable state of mind . . . such as deliberate indifference to inmate health or safety." Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). Tweezers, nail clippers and Nair are not part of the "minimal civilized measure of life's necessities"; indeed, two of them, and perhaps all three, are arguably items that Plaintiff, a mentally disturbed woman, could use to injure herself or others. Furthermore, Plaintiff offers no evidence that Defendant Sergeant Rorick denied her the use of these products with a culpable state of mind; rather, the evidence demonstrates that she was denied the items as a result of her refusal to cooperate with prison staff. She fails to raise a genuine issue of fact in support of a § 1983 claim.

d. The Change in DOCCS Mail Procedures Does Not Violate § 1983.

Plaintiff claims that DOCCS changed its mail procedures while she was in the TBU, such that her sealed legal mail was given to a TBU officer rather than a Law Library officer. This does not state any constitutional violation, since Plaintiff has no constitutional right to have her legal mail handled by library staff rather than by other prison officials. Plaintiff does not offer any evidence that the unnamed TBU officers who took her mail damaged it, destroyed it, or prevented it from reaching the intended recipient.

To state a claim for denial of access to the courts, "a plaintiff must allege that the defendant took or was responsible for actions that hindered a plaintiff's efforts to pursue a legal claim." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (internal quotations omitted). An interference that causes a delay is insufficient; "an inmate must show that the defendant's actions actually interfered with his or her access to the courts or prejudiced an existing action." Jermosen, 1995 WL 144155, at *5. Plaintiff does not identify any legal claims that were affected by the change in policy. She alleges that DOCCS stopped receiving her grievances when the new policy was adopted; DOCCS records indicate that she was able to submit multiple grievances during this period. See Hale Decl. ¶ 7-8.

e. Plaintiff Being Given the Regular Meal Instead of the Alternative Meal Does Not State a § 1983 Claim.

Plaintiff claims that, on many occasions, she was presented with the regular prison meal despite having ordered an alternative meal, and this amounted to a deprivation of food.

Plaintiff's objection to her meals is one of personal preference: she wanted an alternative meal and did not want to eat the regular meal. But the Eighth Amendment requires only "that prisoners be served nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well-being of the inmates who consume it." Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983). Plaintiff offers no evidence that she was not offered nutritionally adequate food; prison officials are under no obligation to honor alternative meal preferences of a non-religious nature, and Plaintiff does not allege that she ordered special meals out of any religious conviction.

f. A Vague Threat from Sergeant Jeffrey Rorick Does Not State a § 1983 Claim.

Plaintiff alleges that she was vaguely threatened by Sergeant Jeffrey Rorick. As noted above, even "vile and abusive language" is insufficient to make out a § 1983 claim. Zeno, 650 F. Supp. at 141. Plaintiff's allegations against Sergeant Rorick do not even ascend to the level of vile and abusive language.

g. Plaintiff's Allegations of False Misbehavior Reports and Retaliation Do Not State a § 1983 Claim.

Finally, Plaintiff alleges that she was the subject of systemic retaliation by prison staff. In particular, she feels that numerous fabricated misbehavior reports were commonly filed against her. She also claims that her grievances ceased reaching their intended recipients while she was incarcerated in the TBU—which, were there any evidence to support it, would deprive Plaintiff of the access to grievance procedures to which she was constitutionally entitled.

Retaliation, while not specifically mentioned in the Constitution, is actionable in certain circumstances precisely because it can chill the exercise of constitutionally protected rights. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996); Colon, 58 F.3d at 872; Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988).

However, as retaliation claims by prisoners "are prone to abuse since prisoners can claim retaliation for every decision they dislike," Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996), courts have been cautioned to approach First Amendment retaliation claims by prisoners with skepticism and particular care. Davis, 320 F.3d at 352. Nonetheless, a First Amendment retaliation claim can survive summary judgment if plaintiff shows: "(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." Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N .A., 534 U.S. 506 (2002). It is well settled that the filing of a prison grievance is a protected activity. Id.

Plaintiff contends, in conclusory fashion, that prison officials repeatedly wrote her up without cause. Plaintiff was, of course, required to fully grieve each and every such instance; her generalized allegation that this occurred repeatedly affords her no basis for proceeding under § 1983. Assuming that Plaintiff had both identified and exhausted every allegedly false misbehavior report (she has not), she offers no admissible evidence that the reports were in fact false. And she offers no evidence that the officers' practice of writing her up deterred her from filing grievances—in fact, the record reveals that she filed dozens of them during her term of imprisonment (although often she failed to take an appeal when the grievances were found to be without merit). This completely undermines any suggestion that the actions of prison officials deterred her from exercising her constitutional rights.

Plaintiff's allegations are conclusory; she merely states that numerous officers wrote false misbehavior reports (many of which she says disappeared). As well, Plaintiff's medical records indicate, at the very least, an adversarial approach to her interactions with prison staff. And though a prisoner "does have a due process right to a hearing before [s]he may be deprived of a liberty interest on the basis of a misbehavior report," Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997), Plaintiff does not allege that any hearing following the supposedly false misbehavior reports was conducted in an unfair fashion. In fact, she notes several instances where a misbehavior report was dismissed as a result of a hearing.

Accordingly, Plaintiff's allegations of retaliation and false misbehavior reports are insufficient to support a § 1983 claim.

J. Miscellaneous Allegations

1. Summary Judgment Is Granted in Favor of Defendants on the Claim Against Fedele Fiore.

Plaintiff contends that the Bedford Hills Law Library, which Defendant Fedele Fiore supervised, "consistently . . . misplaced or lost [her] legal work." She also claims that Defendant Fiore failed to prevent a change in DOCCS policy that meant TBU officers, rather than Law Library officers, retrieved and delivered sealed inmate mail.

I will deem this issue exhausted, since Defendants do not address it in their exhaustion evidence. Having done so, I dismiss the claim.

It is not clear to which of Plaintiff's eight claims this allegation relates. --------

As explained above, even an allegation that her legal work was destroyed is insufficient to sustain a prisoner's § 1983 claim, as long as it does not deny her access to the courts. Plaintiff was still able to grieve complaints and access the courts during the time her legal mail was allegedly being interfered with; in fact, she states that she filed a complaint with the Central Office Review Committee regarding this particular incident.

As to the second part of her claim, Defendant Fiore does not appear to play any role in DOCCS policy choices; this particular change was instituted by Sergeant Michael Rorick and Deputy Superintendent of Security Michael Capra. Plaintiff offers no evidence otherwise. Moreover, a difference in the officers responsible for retrieving and delivering sealed mail cannot possibly form the basis for a prisoner's § 1983 claim.

Accordingly, summary judgment is granted in favor of Defendants on Plaintiff's claim against Defendant Fedele Fiore.

2. Summary Judgment Is Granted in Favor of Defendants on the Claim Against Larry Zwillinger.

Plaintiff originally claimed that Defendant Zwillinger heard her screaming on November 4, 2011, and asked Officer Bouchereau to check on her. This allegation does not rise to the level of a § 1983 claim.

She now claims, in addition, that her cell at some point had sewer flies, that it was sometimes without hot water, and that the temperature sometimes dropped below freezing—and that Defendant Zwillinger delayed fixing these problems because she was a "problem inmate." Though abnormally harsh conditions of confinement can support a § 1983 claim, Plaintiff's allegations are conclusory—and furthermore, she offers no evidence tending to show that any delay in fixing these issues was the result of animus toward her personally. Indeed, she herself claims that the entire unit suffered from the same problems. See Plaintiff's Opposition to Motion for Summary Judgment, p. 13.

Accordingly, summary judgment is granted in favor of Defendants on Plaintiff's claim against Defendant Larry Zwillinger.

CONCLUSION

For the foregoing reasons, Defendants' motion for summary judgment is granted as to all claims not otherwise dismissed for lack of personal involvement or for failure to exhaust administrative remedies. The Clerk of the Court is directed to remove Docket No. 169 from the Court's list of pending motions and to close the file. Dated: August 1, 2014

/s/_________

U.S.D.J. BY ECF TO ALL COUNSEL

Harris v. Fischer

Summary

Opinion

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

INITIAL BACKGROUND

DISCUSSION

I. Lack of Personal Involvement

II. Standard of Review on a Motion for Summary Judgment

III. Exhaustion of Administrative Remedies

IV. Plaintiff's Claims

CONCLUSION

Harris v. Fischer

Harris v. Fischer

Case Details

Citations

Citing Cases

Harris v. Fischer

Summary

Opinion

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

INITIAL BACKGROUND

DISCUSSION

I. Lack of Personal Involvement

II. Standard of Review on a Motion for Summary Judgment

III. Exhaustion of Administrative Remedies

IV. Plaintiff's Claims

CONCLUSION

Harris v. Fischer

Harris v. Fischer

Case Details

CitationsCopy Citation

Citing Cases

Citations