Opinion
05 Civ. 5346 (KMW) (KNF).
March 6, 2009
REPORT and RECOMMENDATION
I. INTRODUCTION
In this pro se action, brought pursuant to 42 U.S.C. § 1983 ("§ 1983"), Anthony Holland ("Holland") alleges that N. James ("James"), G. Brown ("Brown"), John Doe ("Doe"), R. Green ("Green"), and Warden Taylor ("Taylor"), employees of the Otis Bantum Correctional Center ("OBCC") at Rikers Island, Queens, New York (collectively, "the defendants"), violated his constitutional rights.
Attached to the complaint is a sheet of paper listing Captain Coleman ("Coleman") and Commissioner "Horn Martain" ("Martain"), presumably in order to name these individuals as defendants. Service of process was not effected on either Coleman or Martain, nor do these individuals appear in the caption of the action. However, even if these defendants had been served, dismissing the complaint, as to them, would be appropriate. The plaintiff's complaint fails to state any claims or facts relating to Martain.See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) ("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") (internal quotations and citations omitted). The plaintiff alleges Coleman was to conduct an investigation of the disciplinary charges lodged against Holland, but Coleman failed to do so. To the extent Holland seeks to assert a due process claim, based on these facts, as discussed further below, Holland fails to establish that he was deprived of a protected liberty interest.See e.g., Torres v. Mazzuca, 246 F. Supp. 2d 334, 340-42 (S.D.N.Y. 2003) (finding that a prisoner's due process claims, that a proper investigation was not conducted with respect to charges against him in a misbehavior report, or with respect to his grievances, did not implicate a protected liberty interest, as the "failure to conduct an extensive investigation into [such] charges does not impose an 'atypical and significant hardship.' . . .").
Before the Court is the defendants' motion, for an order dismissing the complaint, for failure to state a claim upon which relief can be granted, made pursuant to Federal Rule of Civil Procedure 12(b)(6). The defendants contend they are entitled to the relief they seek because the plaintiff's: (1) due process claim fails under Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995); (2) due process claim cannot be entertained, since Holland failed to exhaust his administrative remedies; and (3) claim, that James "lied" in her report, does not establish a constitutional violation under § 1983. Attached as an exhibit to the declaration of the defendants' counsel, submitted in support of their motion, is a copy of the New York City Department of Correction Memorandum entitled, "Grievance Category Reference Guide," which provides that a grievance "should be categorized according to the following grievance categories," and one such category is defined as:
In January 2006, the court entered a default judgment against Brown, Green, and Taylor; however, in August 2008, the default judgment was vacated.
Disciplinary Process-any complaint about the rules and regulations governing the disciplinary procedure that affect the inmate. This includes, but is not limited to, complaints regarding the substance of due process procedures and compliance with due process procedures. This category would not include requests to amend or expunge disciplinary dispositions.
The defendants' motion is analyzed below.
II. BACKGROUND AND PROCEDURAL HISTORY
In his complaint, Holland alleges James wrote a false report against him, and that the "investigation captain," Coleman, failed to investigate this claim. Holland does not identify the contents of the "false report." On the morning of March 22, 2005, a hearing was held, at which Green presided, and Holland was "denied the right to attend," although it was documented that Holland had refused to attend. Holland maintains that he was denied his right to participate at his hearing, and Green and Brown conspired against him, because they needed to "cover up" the "lie[s]" of a "staff member." Holland alleges that, if he had been allowed to participate in the investigation, he would have requested that the "visiting room cameras be produce[d]," since they "would have proved [his] innocen[ce]." As a result of this disciplinary hearing, Holland was sentenced to 30 days confinement in the Central Punitive Segregation Unit ("CPSU").
Holland asserts that he exhausted his administrative remedies; however, Holland indicates that he did not "file a grievance in the jail, prison, or other correctional facility where [his] claim(s) arose," or "at any other jail, prison, or other correctional facility." He states further that he grieved "non[e]" of the claims in his complaint. However, according to Holland, he "appeal[ed] [the hearing] decision to [the] N.Y.C. Board of Correction[s] an[d] [] also sent a letter of [his] notice of appeal to Warden Taylor which is the correct procedure," but did not receive a response. Holland recalls "grievance had told [him] that it is not a grievance issue." Holland seeks monetary damages for the "injustice" the defendants visited upon him, resulting in his CPSU confinement.
On December 15, 2008, after the defendants' motion had been pending for several months, an order was issued by the Court; it noted that nothing appeared on the court's docket sheet indicating that Holland had filed a response to the defendants' Fed.R.Civ.P. 12(b)(6) motion. To address that circumstance, the Court ordered Holland to file a response to the motion, on or before December 31, 2008. Holland failed to comply with the order.
III. DISCUSSION
A court may dismiss an action, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief may be granted, if the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965. Where, as here, the plaintiff is proceeding pro se, the Court must construe his complaint liberally and "interpret [it] to raise the strongest arguments it suggests." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).When considering a motion to dismiss, a court must accept all material factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Iqbal v. Hasty, 490 F.3d 143, 152 (2d Cir. 2007). Additionally, when assessing a motion made pursuant to Fed.R.Civ.P. 12(b)(6), consideration is limited "to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (internal citations and quotations omitted). "If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal."McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000).
Exhaustion of Administrative Remedies
The instant action was brought pursuant to § 1983, to redress alleged constitutional violations. However, a prisoner's ability to initiate a § 1983 action is constrained by 42 U.S.C. § 1997e, as amended by the PLRA.
42 U.S.C. § 1997e(a) provides, in relevant part, that:
No action shall be brought with respect to prison conditions under section 1983 . . . 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.
"[A] prisoner must exhaust his or her administrative remedies prior to filing a claim under § 1983." Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003).
The New York City Department of Correction's ("DOC") grievance process is composed of five stages: (1) an informal review of a grievance by the Inmate Grievance Review Committee ("IGRC"); (2) a formal review by IGRC, if the informal review fails to resolve a grievance to an inmate's satisfaction; (3) an appeal to the Warden, by an inmate from an adverse IGRC formal recommendation; (4) an appeal to the Central Office Review Committee ("CORC") from the Warden's decision; and (5) an appeal to the Board of Correction ("Board"), from CORC's decision. See Ingram v. Thomas, No. 04 Civ. 5918, 2007 WL 4267203, at *2, 2007 U.S. Dist. LEXIS 88336, at *7 (S.D.N.Y. Dec. 3, 2007). The Board issues an advisory recommendation to the Commissioner of Correction, who issues a final decision. Id. Complete exhaustion is required. See Richardson, supra; see also Jennings v. Horn, No. 05 Civ. 9435, 2007 WL 2265574, at *3, 2007 U.S. Dist. LEXIS 57941, at *10-11 (S.D.N.Y. Aug. 7, 2007) (applying the "complete exhaustion" requirement in the context of grievance procedures provided by DOC).
The Second Circuit has held that, when the issue of exhaustion is raised as a defense, and the plaintiff provides a plausible explanation to counter this defense, district courts should follow a three-step inquiry, analyzing whether: (1) administrative remedies were "available" to the plaintiff; (2) the defendant(s) waived the failure-to-exhaust defense, by failing to raise or preserve it; and (3) any "special circumstances" exist, justifying a prisoner's failure to exhaust his administrative remedies. See Hemphill v. State of New York, 380 F.3d 680, 686 (2d Cir. 2004); see also Jennings, 2007 WL 2265574, at *3, 2007 U.S. Dist. LEXIS, at *12-13.
In the instant case, Holland concedes he did not file a grievance related to the claims he raises in his complaint. However, Holland states that "grievance had told [him] that it is not a grievance issue." Holland offers no other details to explain his attempts, if any, to grieve his false report or due process claims.
In Giano v. Goord, 380 F.3d 670 (2d Cir. 2004), Giano, a prisoner housed in a New York State prison, filed a § 1983 complaint, alleging prison officials tampered with evidence that was presented at a disciplinary hearing, as an act of retaliation. Giano did not file a grievance to exhaust his retaliation claim; rather, Giano stated that, since he was prohibited from filing a grievance based upon prison regulations and "DOCS Directive 4040, which state[s] that disciplinary decisions and dispositions are non-grievable," he exhausted his administrative remedies by appealing the disciplinary hearing decision. Id. at 674. The Second Circuit found that Giano's failure to "exhaust available administrative remedies before filing suit . . . was justified by his reasonable belief that DOCS regulations [specifically, DOCS Directive 4040] foreclosed such recourse." Giano, 380 F.3d at 678.
In the case at bar, Holland does not provide any authority for his belief that he could not grieve his false report and due process claims. According to the "Grievance Category Reference Guide," a grievance about "Disciplinary Process," may be filed, and such a grievance may include "complaints regarding the substance of due process procedures and compliance with due process procedures." Therefore, unlike Giano-where the Second Circuit "concluded that New York [State] [DOCS] regulations governing grievance procedures were unclear," and, therefore, "in the particular circumstances of that case, it was reasonable for the plaintiff to have raised his complaints through the disciplinary appeals process rather than by filing a separate grievance,"Johnson v. Testman, 380 F.3d 691, 696 (2d Cir. 2004) (summarizingGiano) — in the instant case, Holland has not provided any details showing that his reliance on an unidentified source was reasonable and sufficient to excuse his failure to file a grievance respecting the claims asserted in this action. Additionally, nothing in the record before the Court indicates that DOC's regulations governing grievance procedures are unclear. To the extent Holland states in his complaint that he filed a notice of appeal from the hearing decision, unlike the facts in Giano, nothing in the factual allegations in Holland's pleadings indicate that Holland raised his false report or due process claims on appeal. Administrative remedies were "available" for the plaintiff to employ, Hemphill, 380 F.3d at 686; however, Holland's due process and false report claims remain unexhausted.
Even assuming, arguendo, that Holland's failure to exhaust could be excused by appealing the disciplinary hearing decision, and that Holland raised his false report and due process claims on appeal, Holland's claims appear to be meritless. Holland's false report claim is insufficient under § 1983, as case law provides that "a prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997). "There must be more, such as retaliation against the prisoner for exercising a constitutional right." Id. Here, Holland makes no claim of retaliation, and provides no information suggesting anything "more," so as to implicate the violation of a constitutional right.
With regard to Holland's due process claim, a prisoner asserting a denial of due process in connection with a prison disciplinary hearing that resulted in segregative confinement "must make a threshold showing that the deprivation of which he complains imposed an 'atypical and significant hardship on [him] in relation to the ordinary incidents of prison life.'" Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300). In determining whether a prisoner has a protected liberty interest in freedom from disciplinary confinement, under due process principles, a court must examine the specific circumstances of the punishment, including the difference between disciplinary segregation conditions and ordinary prison conditions, as well as the duration of the disciplinary segregation imposed. See Sims, 230 F.3d at 22. "Although there is no bright-line rule regarding the length or type of sanction that would give rise to an 'atypical and significant hardship,' this standard will not be met unless the disciplinary and administrative sanctions are onerous." Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999). In Sandin, the Supreme Court found that 30 days of disciplinary segregation did not constitute "atypical and significant hardship." Sandin, 515 U.S. at 486, 115 S. Ct. at 2301.
Holland has not established a protected liberty interest was violated, since he states that, as a result of the disciplinary hearing in question, he was held in CPSU housing for 30 days. The plaintiff does not allege any difference existed between the conditions of confinement while he was in disciplinary segregation, and those he experienced ordinarily, while incarcerated. Under Sandin, such confinement does not constitute "atypical and significant hardship," and, therefore, regardless of whether the plaintiff exhausted his due process claim, he has failed to state a § 1983 claim.
In addition, to the extent the plaintiff alleges Green and Brown conspired to cover-up a "lie" by a "staff member," "[a] complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss." Boddie, 105 F.3d at 862 (internal quotations and citations omitted).
IV. RECOMMENDATION
For the reasons set forth above, the defendants' motion for an order dismissing the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), Docket Entry No. 37, should be granted.V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Chief Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).