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finding 60 days in the SHU at Shawangunk is "insufficient to constitute a deprivation of a liberty interest"
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03 Civ. 3426 (RJH) (RLE).
October 25, 2005
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff Brandon Holmes brings this pro se action under 42 U.S.C. § 1983 for alleged First, Eighth, and Fourteenth Amendment violations. Holmes asks the Court to transfer him to a correctional facility proximate to New York City, grant him injunctive and declaratory relief against the New York State Department of Correctional Services ("DOCS") for unconstitutional practices, and grant him compensatory and punitive damages for defendants' conspiracy to violate his constitutional rights. Holmes alleges that defendants confined him in the special housing unit ("SHU"), and sentenced him to keeplock (cell confinement) in retaliation for challenging a disciplinary hearing determination in the Shawangunk Correctional Facility ("Shawangunk"). Defendants contend that Holmes's confinement in keeplock and the SHU was disciplinary.
This case was referred to the undersigned on June 11, 2003. On January 16, 2004, defendants moved to change venue to the Northern, or Western District of New York pursuant to 28 U.S.C. § 1391(b) and 28 U.S.C. § 1404(a), and to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure. The undersigned recommends that defendants's motion to dismiss the complaint be GRANTED.
II. BACKGROUND
On June 29, 2000, while confined at Shawangunk, in the Northern District, Holmes was involved in an altercation that resulted in the issuance of an inmate misbehavior report ("IMR") for property damage and possession of stolen property. Amended Complaint ("Am. Compl."), ¶ 20. In addition, Holmes received a second IMR for staff assault, possession of contraband, fighting, refusal to obey a direct order, and refusal to submit to a search. Id. As a result of the IMRs, Correction Captain William C. Connolly issued a mechanical restraint, and an exercise deprivation order. Id. at ¶ 23. A Tier III disciplinary hearing was held on July 5, 2000, on the administrative charges. Id. at ¶ 21. Over Holmes's objections, Connolly was designated as the presiding officer at the hearing. Id. at ¶ 25. Connolly found Holmes guilty, and sentenced him to five years in the SHU. Id. at ¶ 41.On August 30, 2000, while serving the SHU sentence, Holmes was transferred to the Southport Correctional Facility ("Southport"), a SHU facility in the Western District. Id. at ¶ 46. At Southport, Holmes was required to wear full mechanical restraints during recreation. Id. at ¶ 48. Holmes further alleges that he was denied all exercise, and recreation privileges after an altercation with a correction officer. Id. at ¶ 50.
On September 18, 2000, after serving fifty days in the SHU, the Shawangunk Tier III hearing determination was reversed. Id. at ¶ 31-33. Holmes, however, remained in disciplinary confinement because he was issued two new IMRs while serving the Shawangunk sentence. Id. at ¶ 45. Holmes served a thirty-day SHU sentence that commenced on September 18, 2000. Defendants' Memorandum of Law in Support of their Motion to Change Venue and/or Dismiss the Complaint ("Def. Mem.") at 2. From September 25, 2000, to October 18, 2000, Holmes served his SHU sentence in the Eastern Correctional Facility ("Eastern"). Id. at ¶ 52. He also served a thirty-day keeplock sentence at Eastern that commenced on October 18, 2000. Holmes maintains that conditions at Eastern contravene the Eighth Amendment's provision against cruel and unusual punishment. Am. Compl., ¶ 52-61. For security purposes, Eastern has a "nightlight policy" that entails twenty-four hour lighting. Id. Holmes alleges that Eastern's lighting policy resulted in "fatigue . . . loss of appetite, vomiting, migraine headaches, anxiety, elevation of blood pressure . . . and a violent aggravation of rashes." Id. Holmes also asserts that the lighting conditions so interfered with his mental state as to function as a violation of due process. Id. As a result of the Shawangunk incident, criminal felony assault charges were filed against Holmes by multiple defendants. Holmes claims that the allegations were false, and a result of malicious prosecution. Id. at 99-102. Homes was acquitted on June 22, 2001. Id. In addition, he alleges that Eastern's lighting policy impaired his appearance before a grand jury. On November 7, 2000, Holmes was transferred to the Sing Sing Correctional Facility ("Sing Sing"), in the Southern District, to complete his keeplock sentence. Def. Mem. at 5. Holmes was released from keeplock on November 17, 2000. Am. Compl., ¶ 126.
One month after his release from keeplock, Holmes received an IMR at Sing Sing charging him with loss/damage of property, no identification card, messhall violation, and impersonation. Id. at ¶ 130-31. Although Holmes admits that he did not have his identification card, and that he received food from a neighbor, he contends that the IMR was the result of a conspiracy against him. Id. On December 22, 2000, a Tier III hearing was held, and Holmes was sentenced to "counsel and reprimand." Id. at ¶ 132. On March 1, 2001, Holmes received an IMR as a result of an altercation with inmate LaFontaine. Id. at ¶ 138. Holmes maintains that the charges were fabricated, Id. at ¶ 139-47, and that this sequence of events was a direct result of appealing the Shawangunk Tier III determination. At the Tier III hearing, Holmes was found guilty, and sentenced to ninety days in keeplock, and the loss of nine months of good-time credit. Id. at 147. On March 19, 2001, he was transferred from Sing Sing to the Upstate Correctional Facility ("Upstate"), a SHU facility in the Northern District. Id. at ¶ 72. Holmes claims that the transfer was another element in the retaliatory conspiracy against him. He maintains that, based on his successful appeal of the Shawangunk hearing, he was subject to harassment and threats at Upstate, including not having access to his personal property, and having his personal property vandalized. Id. at ¶ 72-74. He was also served meals with food missing. Id. In response to his inquiries, Holmes was asked why he "assault[ed] staff." Id. He interprets this as a reference to Shawangunk.
On May 17, 2001, Holmes was transferred from Upstate to the Five Points Correctional Facility ("Five Points"), in the Western District. Id. at ¶ 156. At Five Points, Holmes was involved in an altercation with inmate LaFontaine, the same person with whom he had fought at Sing Sing. Id. at ¶ 157-58. Because of this incident, Holmes received a new IMR. Id. Holmes alleges that the subsequent Tier III disciplinary hearing contained numerous due process violations. Id. at ¶ 160-66. On May 25, 2005, Holmes was found guilty of violent conduct, and sentenced to ninety days in the SHU, and loss of ninety days of good time credits. Id. On July 13, 2001, after serving almost sixty days in the SHU, this determination was reversed. Id.
On July 23, 2001, Holmes was scheduled to be transferred from Upstate to Clinton Correctional Facility ("Clinton"). Id. at ¶ 83. Holmes maintains that upon his arrival at Clinton, important legal material was missing from his personal property. Id.
III. DISCUSSION
A. Rule 12(b)(6) StandardThe Court may dismiss a complaint, pursuant to Rule 12(b)(6), if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thomas v. City of New York, 143 F.3d 31, 36-37 (2d Cir. 1998) (citation omitted). The Court must determine whether the complaint is legally sufficient. See Goldman v. Selden, 754 F.2d 1059, 1067 (2d Cir. 1985). In accessing the sufficiency of the pleadings, the Court must accepts all factual allegations in the complaint as true. Id. The Court must also "resolve all ambiguities and draw all reasonable inferences against the moving party." Forsyth v. Fed'n of Employment Guidance Serv., 409 F.3d 565, 569 (2d Cir. 2005) (citation omitted).
B. Exhaustion of Administrative Remedies
Defendants contend that this action should be dismissed in its entirety because Holmes has only exhausted administrative remedies for some, but not all of his claims. The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires Holmes to exhaust "such administrative remedies as are available." Booth v. Churner, 532 U.S. 731, 733-34 (2001). In this case, Holmes was required to seek administrative relief under the Inmate Grievance Program ("IGP"). See Soto v. Belcher, 339 F. Supp. 2d 592, 595 (S.D.N.Y. 2004). Under the IGP an inmate must first file a complaint with the Inmate Grievance Resolution Committee ("IGRC") within fourteen days of the alleged occurrence. See 7 N.Y.C.R.R. § 701.7(a)(1). After a hearing, an inmate may appeal to the superintendent within four working days after receipt of the IGRC's response. Upon receipt of the superintendent's response, an inmate may then appeal to the Central Office Review Committee ("CORC") within four days. Once the inmate appeals to the CORC, the IGP appeal process is exhausted.
The record shows that Holmes is familiar with the IGP, and that he has filed numerous grievances. Nevertheless, he failed to exhaust administrative remedies for a number of claims in his petition. Holmes makes no allegation that he attempted to file a grievance concerning: 1) defendants's alleged use of excessive force during the June 29, 2000 incident at Shawangunk, Def. Mem. at 14; 2) defendants's alleged use of falsified records in the Shawangunk Tier III hearing, id. ¶ 45; 3) his malicious prosecution, id. ¶¶ 97-116; and 4) the receipt of two IMRs at Shawangunk for allegedly asserting his constitutional rights, id. ¶ 45. Holmes contends that he did not file grievances because he feared for his safety, and that defendants conspired to obstruct his access to court. In light of Holmes's repeated use of the IGP to appeal Tier III hearing determinations, the Court finds these arguments unpersuasive. The record shows that his grievances were addressed, and that as a result of his grievance efforts, two Tier III determinations were reversed. Accordingly, I recommend that the Court dismiss all of Holmes's unexhausted claims.
C. Conspiracy Claim
Holmes alleges that there is a conspiracy to retaliate against him for his successful appeal of the Shawangunk Tier III determination. He must "proffer more than conclusory allegations in order to support a civil rights conspiracy complaint." Hyman v. Holder, 2001 WL 262665, at *5 (S.D.N.Y. Mar. 15, 2001) (citation omitted). He must also demonstrate an agreement between defendants. See Whitfield v. Forest Electrical Corp., 772 F. Supp. 1350, 1353 (S.D.N.Y. 1991). Holmes has failed to meet this standard. The record does not show that an agreement existed between defendants to harass or confine Holmes, or that he suffered adverse actions as a result of such agreement. Rather, the record shows that Holmes's confinement was disciplinary. Defendants had a good faith basis for discipline regardless of alleged conspiratorial intent.
In support of his conspiracy claim, Holmes maintains that correction officers made conspiratorial admissions. He asserts that in response to an inquiry a "correction sergeant . . . told [him] [he] pissed someone off by vindicating [his] rights and conceded the correctness of [his] argument (against excessive confinement)." Am. Compl. at 127. Even assuming arguendo that these unconfirmed admissions of guilt are true, there is no indication that discoverable evidence exists. The Court cannot give great weight to unsupported allegations of conspiratorial admissions. See Salahuddin v. Cuomo, 861 F.2d 40, 43 (2d Cir. 1988). I recommend, therefore, that the Court dismiss the conspiracy claims.
D. Retaliation Claim
Holmes maintains that he was subject to adverse treatment in retaliation for challenging the Shawangunk Tier III hearing determination, and that defendants transferred him in retaliation for exercising his constitutional rights. In order for the retaliation claim to survive dismissal, Holmes must advance non-conclusory allegations demonstrating that: 1) the conduct, or speech was protected; 2) that defendants took adverse action against him; and 3) that there was a causal connection between the protected conduct, and the adverse action. See Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000); see also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citation omitted). Moreover, "retaliation claims by prisoners are prone to abuse since prisoners can claim retaliation for every decision they dislike." Id. (citation omitted). The record shows that Holmes's extended confinement in the SHU and keeplock was the result of his conduct — namely, involvement in altercations with other inmates, and violation of DOCS's rules. Defendants had a good faith basis for confining him. "New York prison regulations permit inmates to be confined in SHU for disciplinary confinement, administrative segregation, protective custody, detention, keeplock confinement and for any other reason, with the approval of the deputy commissioner of facility operations." Baker v. Finn, 2001 WL 1338919, at *4 (S.D.N.Y. Oct. 31, 2001) (citation omitted). Holmes's retaliation claim against defendants is, therefore, without merit, and should be dismissed by the Court.
E. Denial of Due Process
Holmes alleges that his Tier III disciplinary hearing at Sing Sing violated his due process rights. Holmes lost nine months of good time credit as a result of the Sing Sing determination. See Am. Compl. at ¶ 147. Although Holmes does not seek the restoration of his good time credits, his claim, if successful, would invalidate his disciplinary hearing. The Court cannot entertain Holmes's claim. See Pittman v. Forte, 2002 WL 31309183, at *2 (N.D.N.Y. July 11, 2002); see also Heck v. Humphrey, 512 U.S. 477 (1994). Since the Sing Sing Tier III determination has not been reversed, "judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Id. at 487. I recommend, therefore, that this claim be dismissed.
Holmes also contends that his due process rights were violated at the Shawangunk and Five Points Tier III hearings. Unlike Sing Sing, both the Shawangunk and Five Points Tier III hearing determinations were reversed, and Holmes's claims are not precluded by Heck v. Humphrey. However, Holmes must demonstrate that his treatment was atypical, and that he endured a significant deprivation of a liberty interest in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 486 (1995). Holmes must also establish that, "[t]he state has granted its inmates, by regulation or statute, a protected liberty interest in remaining free from confinement or restraint." Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996). If a prisoner satisfies both of these elements, then he or she must prove that "the deprivation of the liberty interest occurred without due process of law." Williams v. Goord, 111 F. Supp. 2d 280, 288 (S.D.N.Y. 2000) (citation omitted).
The record does not show that Holmes endured a deprivation of due process at either Shawangunk or Five Points. The length of his confinement at both Shawangunk and Five Points is insufficient to constitute a deprivation of a liberty interest. At Five Points, Holmes served only forty-nine days in the SHU before the administrative determination was reversed. Am. Compl. ¶ 160-66. At Shawangunk, he served a total of eighty-one days in the SHU. See Def. Mem. at 22. However, for twenty-one days Holmes was administratively confined pending a disciplinary determination for the Shawangunk altercation. Administrative confinement is authorized and not punitive. See Torres v. Mazzuca, 246 F. Supp. 2d 334 (S.D.N.Y. 2003). Holmes, therefore, only served sixty days in the SHU at Shawangunk before his administrative determination was reversed. "Although there is no bright-line rule for what length of confinement would constitute an atypical and significant hardship, and although this determination requires a fact-intensive inquiry by the district court, the decisions in this Circuit generally require that the duration of SHU confinement be at least 100 days in order to be considered an atypical and significant hardship." Palmer v. Goss, 2003 WL 22327110, at * 6 (S.D.N.Y. Oct. 10, 2003); see also Cox v. Malone, 199 F. Supp. 2d 135 (S.D.N.Y. 2002). The length of Holmes's confinement at Shawangunk and Five Points is, therefore, insufficient to constitute a deprivation of a liberty interest. I recommend that his due process claims, arising from his Tier III hearings at Shawangunk and Five Points, be dismissed.
F. Conditions of Confinement
Holmes contends that the confinement conditions in the Shawangunk SHU violate the Eighth Amendment. "Disputes about conditions may not be resolved over summary judgment, but where the conditions are undisputed, the Sandin issue should be resolved by the Court as a matter of law." Palmer v. Richards, 364 F.3d 60, (2d Cir. 2004) (citation omitted). Since Holmes failed to substantiate his allegation, I recommend that this claim be dismissed.
Holmes alleges that the placement of two inmates per cell at Five Points is a violation of the Eighth Amendment's provision against cruel and unusual punishment. This argument has no merit. Confinement in a double-occupancy cell is a part of normal conditions in the general population or the SHU. See Scott v. Gardner, 287 F. Supp. 2d 477, 494 (S.D.N.Y. 2003). This policy, therefore, does not rise to the level of a constitutional violation, and this claim should be dismissed.
Holmes further contends that he was forced to exercise with mechanical restraints at Southport. However, there is no evidence that he filed a grievance to address this claim. Since Holmes failed to exhaust administrative remedies, I recommend that the Court dismiss this claim.
Holmes has also alleged injuries resulting from the twenty-four hour lighting policy at Eastern. Am. Compl. at ¶ 55. He claims that Eastern's lighting policy is a violation of the Eighth Amendment. See Id. ; see also Amaker v. Goord, 2002 WL 523371 at *6 (S.D.N.Y. Mar. 29, 2002). To succeed on this claim, Holmes must "demonstrate exposure to [harm] that poses an unreasonable risk of serious damage to future health, and that the risk is not one that today's society chooses to tolerate." Zaire v. Artuz, 2003 WL 230868 at *4 (S.D.N.Y. Feb. 3, 2003) (citation omitted). He has failed to substantiate his allegations, and the Court should dismiss this claim.
G. Due Process and Access to Court
Holmes alleges that he was denied access to court. He maintains that defendants lost important documents — including DOCS grievances and trial transcripts — as part of the retaliatory conspiracy against him. Holmes has a constitutional right to reasonable access to the courts. See Dugar v. Coughlin, 613 F. Supp. 849, 853 (S.D.N.Y. 1985) (citation omitted). However, since Holmes failed to exhaust administrative remedies, I recommend that the Court dismiss this claim.
H. Malicious Prosecution
As a result of the Shawangunk incident, criminal felony assault charges were filed against Holmes by multiple defendants. Holmes claims that the allegations were false, and a result of malicious prosecution, a state law claim. Am. Compl., ¶ 99-102. Holmes was acquitted on June 22, 2001. Defendants argue that the Court does not have jurisdiction over Holmes's state law claims. Relying on New York State Correction Law § 24, defendants maintain that state law claims attached to a § 1983 action must be dismissed. See Baker v. Coughlin, 77 F.3d 12, 16 (2d Cir. 1996). The Court disagrees. By its terms § 24 shields defendants acting "within the scope of [their] employment and in the discharge of [their] duties." Ierardi v. Sisco, 119 F.3d 183, 187 (2nd Cir. 1997). Defendants's decision to file criminal felony assault charges against Holmes after the Shawangunk incident is clearly not "within the scope of their official duties as correction officers." Id. at 187-9. By electing to proceed outside of the DOCS, defendants acted beyond the scope of the public policy protections of § 24. Defendants contention that this Court lacks jurisdiction over Holmes's malicious prosecution claim is, therefore, without merit.
Nevertheless, examining Holmes's malicious prosecution claim in light of defendants' motion to dismiss, I recommend that the claim be dismissed. "To succeed on a claim for malicious prosecution, the plaintiff must show that a prosecution was initiated against him, that it was brought with malice but without probable cause to believe that it could succeed and that the prosecution terminated in favor of the accused plaintiff." Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003). Although eventually acquitted, the record shows that Holmes was indicted on two charges by a grand jury. Accordingly, there was probable cause to lead "a reasonably prudent person to believe the plaintiff guilty." Id. Holmes's Fourth Amendment claim regarding the alleged malicious prosecution, should be dismissed.
I. Malicious Abuse of Process
The gist of an action for abuse of process is the improper use of process after it is issued. See Tedeschi v. Smith Barney, 548 F.Supp. 1172, 1174 (S.D.N.Y. 1982). Holmes does not allege that defendants misused the process, but claims an improper motive for filing the suit. A bad motive alone cannot support a claim for abuse of process. Perry v. Manocherian, 675 F. Supp. 1417, 1429 (S.D.N.Y. 1987) (citation omitted). Moreover, Holmes has not demonstrated a cognizably injury. The abuse of process must result in actual or special damages. Id. Enduring mechanical restraints is not a cognizable injury, but rather a normal aspect of prison life. The abuse of process claim should be dismissed.
J. Motion to Change Venue
If Holmes's complaint is not dismissed, defendants ask the Court to grant a change of venue. Def. Mem. at 11-13. Holmes alleges that this action is properly venued in the Southern District because of the events at Sing Sing, which are a part of a broader department-wide conspiracy to retaliate against him for the Shawangunk incident. Holmes's Memorandum of Law in Opposition to defendant's Motion to Dismiss And/Or Change of Venue ("Holmes's Mem.") at 23. Defendants contend that the events at Sing Sing are not a substantial part of the experience giving rise to the claims. Under 28 U.S.C. § 1404(a), the Court has discretion in deciding a motion for change of venue. In considering a motion for transfer, the courts consider: 1) whether the action could have been brought in the transferee forum; 2) the convenience of witnesses and parties; 3) the interest of justice. Id. ; see also Thomas v. Coombe, 1998 WL 391143 at *6 (S.D.N.Y. July 13, 1998). The record shows that the alleged cause of the conspiracy — namely, the incident at Shawangunk — occurred in the Northern District. Further, most defendants are in the Northern District, and Holmes is currently confined in a facility in the Western District. It is counterintuitive for the Court to order the vast majority of parties, including Holmes, to appear in the Southern District to litigate a dispute that arose primarily in the Northern District. See Alexander v. Selsky 2004 WL 941803, at *4 (W.D.N.Y. Mar. 24, 2004). I recommend that if the Court does not dismiss Holmes's complaint in its entirety, that defendant's motion for a change of venue be GRANTED, and any remaining claims be transferred to the Northern District.
IV. CONCLUSION
The undersigned recommends that defendants's motion to dismiss the complaint be GRANTED. Alternatively, if the Court does not dismiss Holmes's complaint in its entirety, I recommend that defendant's motion for a change of venue be GRANTED, and any remaining claims be transferred to the Northern District. Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Richard J. Howell, 500 Pearl Street, Room constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Small v. Sec'y of Health Human Serv., 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).