Opinion
15-CV-03773 (GRB) (LGD)
12-28-2022
DAVID HOSANNAH, Plaintiff, v. OFFICER AMEED SAEED and NASSAU COUNTY CORRECTIONAL CENTER SHERIFF DEPARTMENT Defendants.
REPORT AND RECOMMENDATION
LEE G. DUNST, Magistrate Judge:
Pro se plaintiff David Hosannah (“Plaintiff”), an inmate currently in custody of the New York State Department Corrections and Community Supervision, commenced this action pursuant to 42 U.S.C. Section 1983 on June 18, 2015 alleging that he suffered verbal threats, sexual harassment, and sexual abuse while incarcerated at the Nassau County Correctional Center (“NCCC”) in 2014 and 2015 in violation of his rights under the First, Fifth, Eighth, Ninth, and Fourteenth Amendments. See generally Complaint, Electronic Case File Docket Number (“ECF No.”) 1 (“Complaint” or “Compl.”). Presently before the Court, pursuant to the January 19, 2022 referral from the Honorable Gary R. Brown for a Report And Recommendation, is the motion for summary judgment under Federal Rule of Civil Procedure 56 by defendants Officer Ameed Saeed (“Saeed”) and Nassau County Correctional Center Sheriff's Department (“Sherriff's Department” and together with Saeed, “Defendants”) seeking dismissal of the Complaint with prejudice. See ECF No. 69. As set forth below, the undersigned respectfully recommends that the Court GRANT IN PART and DENY IN PART Defendants' motion for summary judgment and that the Court DISMISS certain claims under 42 U.S.C. § 1997e(c) and 28 U.S.C. § 1915(e)(2)(B)(ii).
I. FACTUAL BACKGROUND
The facts, as recited below, are taken from the Complaint, Defendants' Local Civil Rule 56.1 Statement at ECF No. 69-1 (“Def. 56.1 Statement”), Plaintiff's opposition to the motion for summary judgment at ECF No. 72, and admissible evidence submitted by the parties.
A. Admission to the NCCC
Plaintiff was arrested on September 13, 2013 and admitted to the NCCC on September 14, 2013. See Def. 56.1 Statement ¶ 1; ECF No. 70-5 (“Plaintiff's Dep. Tr.”) at 14:7-16. The NCCC is “the County jail facility which is staffed by members of the Nassau County Sheriff's Department, Division of Corrections.” Def. 56.1 Statement ¶ 2.
B. Allegations Concerning Saeed
1. The First Grievance
On January 30, 2014, Saeed “harassed” Plaintiff by stating Plaintiff looked “big and strong” and “gentley [sic] squeezing” Plaintiff's shoulder. See Compl. at 7. The next day, on January 31, 2014, Plaintiff filed Grievance Form #014-02-14 (the “First Grievance”) with the NCCC, which reported the interaction with Saeed and requested “a full investigation ....” Id. On February 7, 2014, the Grievance Coordinator filled in the “Decision of the Grievance Coordinator” section of the First Grievance by noting that the grievance was “[a]ccepted” because “[a]ny information received alleging staff misconduct must be forwarded to the Sheriff's Bureau of Investigation for investigation.” Id. On February 10, 2014, Plaintiff signed his name in the “Acceptance/Appeal of Grievance Coordinator's decision” section of the form but did not check whether he accepted or appealed the Grievance Coordinator's decision. See id.
2. The Second Grievance And First Disciplinary Form
On March 28, 2014, Saeed learned that an investigation found him “not to be guilty” of the conduct alleged in the First Grievance, and he then filled out Disciplinary Form 8771 (the “First Disciplinary Form”) charging Plaintiff with filing a false report. See id. at 13. That same day, Saeed threatened to lock Plaintiff in his unit unless he signed the First Disciplinary Form. See id. at 9. On April 3, 2014, Saeed confirmed to Plaintiff that he “spoke to internal affairs” about the First Grievance. Compl. at 4.
Later on April 3, 2014, Plaintiff filed Grievance Form #033-04-14 (the “Second Grievance”) with the NCCC, which (1) reported the March 28, 2014 interaction with Saeed, (2) characterized that interaction as “retaliating against [an] inmate for grieving an officer for his misconduct” because it took place after “internal affairs spoke to” Saeed about the First Grievance, (3) stated “I refused the law library and was given [the First Disciplinary Form] from Officer Saeed,” and (4) requested that the matter be investigated and that Saeed undergo “a [psych]ological examination” Compl. at 9. On April 9, 2014, the Grievance Coordinator filled in the “Decision of the Grievance Coordinator” section of the form by checking that the grievance was “[a]ccepted” and noting that “[a] copy of this grievance was forwarded to the facility's investigative unit, Internal Affairs (IA).” Id. On April 14, 2014, Plaintiff signed his name in the “Acceptance/Appeal of Grievance Coordinator's decision” section of the form but did not check whether he accepted or appealed the Grievance Coordinator's decision. See id. The Second Grievance contains a handwritten “witness” note that Plaintiff “refused to check” whether he accepted or appealed the decision of the Grievance Coordinator. Id.
3. The Third Grievance
On or before April 18, 2014, an unidentified Corporal gave Plaintiff a copy of the First Disciplinary Form. See Plaintiff's Dep. Tr. at 112:24-113:14. On April 18, 2014, Saeed went to Plaintiff and threatened to “fuck [Plaintiff] up” if Plaintiff failed to give that copy of the Disciplinary Report to Saeed. Compl. at 11; see Compl. at 4. That same day, Plaintiff filed Follow Up Grievance Form #033-04-14 (the “Third Grievance”) with the NCCC, which described the April 18, 2014 interaction with Saeed and requested that the NCCC “investigate this problem.” Compl. at 11.
4. The Fourth Grievance
On July 1, 2015, Saeed told Plaintiff to “take [his] sexy ass” to the front of the law library line and made a kissing “gesture” towards Plaintiff. Hosannah II, ECF No. 1 at 10. On July 2, 2015, Plaintiff filed Grievance Form #023-07-16 (the “Fourth Grievance”, and together with the First Grievance, Second Grievance, and Third Grievance, collectively, the “Grievances”) with the NCCC, which described the July 1, 2015 interaction with Saeed and requested that the NCCC “look into this ongoing problem.” Id. On July 10, 2015, the Grievance Coordinator filled in the “Decision of the Grievance Coordinator” section of the form by checking that the grievance was “[a]ccepted” and noting that “[t]his office has investigated the incident . . . and was unable to substantiate” the allegations. Id. On July 14, 2015, Plaintiff signed his name in the “Acceptance/Appeal of Grievance Coordinator's decision” section of the form and checked that he “read and accepted the Grievance Coordinator's decision.” Id.
5. August 12, 2015 Incident And Second Disciplinary Form
On August 12, 2015, Plaintiff met with internal affairs “after almost 2 years of constantly writing grievance[s] and complaint[s] to every higher personnel at [the NCCC].” ECF No. 72 at 11. Saeed stopped Plaintiff's escort back from that meeting and told Plaintiff to put his hands up against the wall adjacent to the dorm entrance. See id. As Plaintiff complied with that directive, the officer already escorting Plaintiff asked “What did [Plaintiff] do?” Id. Saeed ignored that question and instead told Plaintiff “don't fucking move.” Id. Plaintiff began to state that he did not move and was complying, but “before [Plaintiff] even finish[ed his] sentence” Saeed said “shut the fuck up and face the fucking wall.” Id. at 12. Plaintiff reports that “Saeed then proceeded to pat or frisk me as he reach my lower back area he then squeeze my butt, then from behind he reach between my legs and grab my private part slowly holding it for a few seconds. Then slowly bring his hands back between my legs very slowly holding and squeezing my butt [again].” Id.; see Hosannah II, ECF No. 1 at 4, 20 (similar). During that search, the officer who was already escorting Plaintiff asked Saeed “what['s] the problem?,” asked Saeed “what did he do?,” and confirmed to Saeed “we already search[ed] him downstairs.” ECF No. 72 at 12; see Hosannah II, ECF No. 1 at 4, 20 (similar). Instead of responding to that other officer, Saeed threatened to go to Plaintiff's unit if Plaintiff said “anything” about the encounter. ECF No. 72 at 12; Hosannah II, ECF No. 1 at 4, 20.
Later on August 12, 2015, Plaintiff wrote a letter to the New York State Inspector General and the New York State Commission of Correction Internal Affairs Unit to report that day's incident with Saeed, and Saeed gave Plaintiff Disciplinary Form #99560 (“Second Disciplinary Form”). See ECF No. 72 at 11-12; Hosannah II, ECF No. 1 at 4, 20. The copy of the Second Disciplinary Form provided to the Court is illegible, and neither Plaintiff nor Defense counsel were able to read the Second Disciplinary Form at Plaintiff's deposition. Hosannah II, ECF No. 1 at 13; Plaintiff's Dep. Tr. 125:11-126:25. Notably, Defendants' summary judgment filings are silent on the August 12, 2015 incident.
C. Allegations Concerning Other Corrections Personnel
Plaintiff alleges that Sergeant Morrone (“Morrone”), Sergeant Krueger (“Krueger”), and Captain Rogers (“Rogers”) each “assist[ed] [Saeed] in violating [Plaintiff's] civil rights.” See Hosannah II, ECF No. 1 at 5. To that end, Plaintiff alleges that (1) an unspecified person “lock[ed him] in” at an unspecified time after Plaintiff at some point spoke to Morrone about the First Grievance, and (2) Plaintiff received a memo dated August 17, 2015, which was signed by Krueger on behalf of Rogers, that imposed a 30-day law library restriction as a result of the Second Disciplinary Form. See id. at 4, 14.
D. Impact Of These Experiences
As a result of the foregoing experiences, Plaintiff reportedly suffered from “insomnia, nightmares, and an overall fear of Officer Saeed” as well as “psychological injury, psychological trauma, and depression.” ECF No. 72 at 3.
E. Plaintiff's Conviction And Transfer From the NCCC
In connection with his September 13, 2013 arrest, Plaintiff was convicted in October 2015 of a robbery offense, sentenced to 20 years, and transferred from the NCCC to the New York State Department of Corrections and Community Services on October 11, 2016. See Def. 56.1 Statement ¶ 3; Plaintiff's Dep. Tr. at 12:14-14:16.
II. PROCEDURAL HISTORY
On June 18, 2015, Plaintiff commenced this action (Hosannah I) by filing the Complaint, which asserts claims under 42 U.S.C. Section 1983 that Defendants violated Plaintiff's rights under the First, Fifth, Eighth, Ninth, and Fourteenth Amendments. See generally Compl. On August 21, 2015, then-presiding District Judge Joseph F. Bianco granted Plaintiff's motion to proceed in forma pauperis in Hosannah I. See ECF No. 9. On September 10, 2015, Plaintiff commenced a second action (Hosannah II). See Hosannah II, ECF No. 1. On September 19, 2015, Defendants answered the Complaint in Hosannah I. See ECF No. 12. On November 18, 2015, then-District Judge Bianco issued an Order that (1) granted Plaintiff's motion to proceed in forma pauperis in Hosannah II and (2) consolidated the Hosannah II complaint into Hosannah I and closed the docket for Hosannah II because the cases “are largely duplicative.” ECF No. 17 at 2-4.
On January 19, 2022, District Judge Gary R. Brown (to whom the case was reassigned on January 31, 2020) ordered that “any dispositive pretrial motions are referred to the assigned Magistrate Judge for a Report and Recommendation.” January 19, 2022 Order. On April 6, 2022, Magistrate Judge Anne Y. Shields, to whom this case was then assigned, issued an order that confirmed the parties completed discovery and set a briefing schedule for the parties' anticipated summary judgment motion practice. See April 6, 2022 Scheduling Order. On June 10, 2022, this case was reassigned to the undersigned Magistrate Judge. See June 10, 2022 Notice Of Reassignment. Consistent with the schedule set by the Court, Defendants filed the parties' collective motion papers on June 14, 2022. See ECF Nos. 69-73.
III. LEGAL STANDARDS
A. Summary Judgment
Summary judgment must be granted when there is “no genuine dispute as to any material fact and the movant[s] [are] entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “No genuine dispute of material fact exists when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” McKinney v. City of Middletown, 49 F.4th 730, 737 (2d Cir. 2022) (internal quotations omitted). “The moving party bears the initial burden of showing that there is no genuine dispute as to a material fact.” Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018) (internal quotations omitted). With respect to issues for which the burden of proof falls on the nonmoving party, the movant can merely “point[] to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim.” Id. (internal quotations and alterations omitted). Once the moving party carries its burden, “the nonmoving party must come forward with evidence that would be sufficient to support a jury verdict in its favor.” McKinney, 49 F.4th at 738 (internal quotations omitted). In this analysis, the Court must “construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” ING Bank N.V. v. M/V Temara, 892 F.3d 511, 518 (2d Cir. 2018). Critically, “[t]he role of the district court on summary judgment is ‘not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.'” McKinney, 49 F.4th at 738 (quoting Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011)).
B. Plaintiff's Pro Se Status
A court considering a motion for summary judgment must afford “special solicitude” to a Pro se litigant. Berry v. Marchinkowski, 137 F.Supp.3d 495, 522 (S.D.N.Y. 2015) (quoting Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988)). To that end, the Court must “liberally construe” Plaintiff's filings and “read[] such submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild For The Blind, 864 F.3d 154, 156 (2d Cir. 2017) (quoting Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007)). The duty to liberally construe those filings “is not the equivalent of a duty to re-write [them].” Williams v. Richardson, 425 F.Supp.3d 190, 201 (S.D.N.Y. 2019) (internal quotations omitted). This policy is “driven by the understanding that implicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.” McLeod, 864 F.3d at 156 (quoting Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)). Nonetheless, “pro se status ‘does not exempt a party from compliance with relevant rules of procedural and substantive law.'” E.g., Peavey v. A. Rosenblum, Inc., 793 F.Supp.2d 590, 594 (E.D.N.Y. 2011) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)); see Faretta v. California, 422 U.S. 806, 834 n.46 (1975) (“The right of self-representation is not a license . . . not to comply with relevant rules of procedural and substantive law.”). At bottom, construing Plaintiff's filings liberally, Plaintiff must still satisfy “the usual requirements of summary judgment.” Houston v. Teamsters Local 210, Affiliated Health & Ins. Fund-Vacation Fringe Ben. Fund, 27 F.Supp.3d 346, 351 (E.D.N.Y. 2014) (internal quotations omitted).
C. Plaintiff's Section 1983 Claims
Section 1983 provides that
Every person who, under color of any statue, ordinance, regulation, custom or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.42 U.S.C. § 1983. “It is well-settled that § 1983 does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere.” Morris-Hayes v. Bd. of Educ., 423 F.3d 153, 159 (2d Cir. 2005); see Moroughan v. Cnty. of Suffolk, 514 F.Supp.3d 479, 511 (E.D.N.Y. 2021) (“Section 1983 does not itself create substantive rights; it offers a method for vindicating federal rights elsewhere conferred.” (internal quotations omitted)).
IV. DISCUSSION
Defendants seek summary judgment in their favor on three grounds: (1) the Prison Litigation Reform Act (“PLRA”) bars this action, (2) the alleged verbal abuse “does not amount to constitutional violations” recoverable under Section 1983 and (3) the Sherriff's Department is a non-suable entity. See ECF No. 71 (“Def. Mem.”) at 3-7. Those arguments (and other issues) are addressed below.
A. Plaintiff's Facially Deficient Claims
For the reasons detailed below, the Court recommends the Court dismiss the claims against the Sheriff's Department consistent with Defendants' motion and recommends that the Court sua sponte dismiss the claims that rely on the Fifth, Eighth, and Ninth Amendments. See Def. Mem. at 7 (arguing for dismissal of claims against the Sheriff's Department); 42 U.S.C. § 1997e(c) (requiring the Court to dismiss a Section 1983 prisoner action “on its own motion” when “the court is satisfied that the action . . . fails to state a claim upon which relief can be granted”); 28 U.S.C. § 1915(e)(2)(B)(ii) (requiring the Court to dismiss an action proceeding in forma pauperis “at any time” the Court determines it “fails to state a claim on which relief may be granted”).
1. Claims Against the Sherriff's Department
“It is well established that Plaintiff cannot maintain claims against the Nassau County Sheriff's Department, because it is an administrative arm of the County that cannot be sued separately.” Gazzola v. Cnty. of Nassau, No. 16-CV-0909, 2022 WL 2274710, at *15 (E.D.N.Y. June 23, 2022) (collecting cases). To the extent Plaintiff may have intended for the claim against the Sherriff's Department to have been asserted against the NCCC, such a claim would fail for the same reasons. See id. (explaining that the NCCC is a non-suable entity); Gleeson v. Cnty. of Nassau, No. 15-CV-6487, 2019 WL 4754326, at *14 (E.D.N.Y. Sept. 30, 2019) (same).
At the motion to dismiss stage, some courts replace improperly named municipal administrative defendants in Pro se complaints with the municipalities themselves (provided the latter are not already defendants) and then construe plaintiffs' claims as pursuing municipal liability. See, e.g., Haddock v. Nassau Cnty. Ct., No. 21-CV-2923, 2021 WL 5920035, at *2 (E.D.N.Y. Dec. 15, 2021). The Court is not required to do so after the conclusion of summary judgment briefing and the close of fact discovery. See Barnes v. Malavi, 412 F.Supp.3d 140, 141 n.2 (E.D.N.Y. 2019) (granting summary judgment and dismissing claim against non-suable defendant Suffolk County Correctional Facilities Riverhead without construing the claim against Suffolk County); Greene v. D.O.C., No. 10-CV-5344, 2012 WL 694031, at *2 (S.D.N.Y. Mar. 5, 2012) (holding defendant Department of Corrections was a non-suable entity and concluding that was an “independently sufficient” basis to grant summary judgment dismissing the case). Nonetheless, after addressing the claims against Saeed, this Report And Recommendation explains why Plaintiff has not alleged a claim for municipal liability.
2. The Fifth Amendment Claim
“The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without due process of law.” Dusenbery v. United States, 534 U.S. 161, 167 (2002) (internal quotations omitted). Plaintiff's “citation to the Fifth Amendment is inapposite” because Defendants are “not federal[] actors ....” Bussey v. Phillips, 419 F.Supp.2d 569, 586 (S.D.N.Y. 2006) (citing Dusenbery, 534 U.S. at 167) (dismissing Section 1983 claim); see Meisel v. Westchester Cnty., No. 18-CV-7202, 2020 WL 3472500, at *3 (S.D.N.Y. June 25, 2020) (concluding Fifth Amendment violations did not occur at Westchester County Jail because defendants were “state, not federal, actors”).
3. The Eighth Amendment Claim
“[T]he Eighth Amendment provides that cruel and unusual punishments shall not be inflicted . . . [and] the Fourteenth Amendment incorporates the Cruel and Unusual Punishments Clause against the States.” Jones v. Mississippi, __ U.S. __, 141 S.Ct. 1307, 1314 (2021) (internal quotations omitted). As noted above, Plaintiff was a pretrial detainee at all relevant times. The Eighth Amendment does not apply to pretrial detainees because they “have not been convicted of a crime and thus may not be punished in any manner-neither cruelly and unusually nor otherwise.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (internal quotations omitted); see Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (similar). Accordingly, Plaintiff cannot maintain a claim for an Eighth Amendment violation during the relevant time at the NCCC. See Martinez v. United States, No. 20-CV-7275, 2021 WL 4224955, at *5 n.4 (S.D.N.Y. Sept. 16, 2021) (dismissing Eighth Amendment claim because plaintiff was a pretrial detainee during the relevant time-period); Sanders v. Simonovic, No. 19-CV-5525, 2021 WL 707060, at *10 (S.D.N.Y. Feb. 23, 2021) (same), appeal dismissed, No. 21-600, 2021 WL 4167369 (2d Cir. July 1, 2021);
4. The Ninth Amendment Claim
The Ninth Amendment provides that “[t]he enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. amend. IX. The Ninth Amendment “is not an independent source of constitutional rights that may be asserted in a civil rights action.” Lloyd v. Lee, 570 F.Supp.2d 556, 566 (S.D.N.Y. 2008). That is, “[t]he Ninth Amendment cannot serve as the basis for a § 1983 claim because such a claim must be premised on the violation of a right guaranteed by the U.S. Constitution or federal law” Id.; see Meisel, 2020 WL 3472500, at *3 (“[T]he Ninth Amendment cannot serve as the basis for a § 1983 claim.”); Diaz v. City of New York, No. 00-CV-2944, 2006 WL 3833164, at *7 (E.D.N.Y. Dec. 29, 2006) (“[N]o independent constitutional protection is recognized which derives from the Ninth Amendment and which may support a § 1983 cause of action” (internal quotations omitted)).
B. The PLRA
Defendants argue that the PLRA's provisions requiring exhaustion of administrative remedies in this case and the presence of physical injury bar Plaintiff's claims. See Def. Mem. at 3-6. The Court disagrees.
1. Exhaustion