Opinion
9:14-CV-0803 (BKS/TWD)
04-16-2015
JOHNATHAN JOHNSON, Plaintiff, v. JEFF MCKAY, GAIL HAPONIK, DR. CARL KOENIGSMANN, JOSEPH BELLINIER, MAUREEN E. BOLL, BRIAN FISCHER, DAVID ROCK, THEODORE ZERNIAK, and DONALD UHLER, Defendants.
Appearances: Plaintiff Pro Se Jonathan Johnson 89-A-1042 Upstate Correctional Facility P.O. Box 2001 Malone, NY 12953 For Defendants: Hon. Eric T. Schneiderman Attorney General for the State of New York by David J. Sleight, Esq. Main Place Tower 350 Main Street, Suite 300A Buffalo, NY 14202
Appearances:
Plaintiff Pro Se
Jonathan Johnson
89-A-1042
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
For Defendants:
Hon. Eric T. Schneiderman
Attorney General for the State of New York
by David J. Sleight, Esq.
Main Place Tower
350 Main Street, Suite 300A
Buffalo, NY 14202
Hon. Brenda K. Sannes, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Johnathon Johnson brings this action against defendants Jeff McKay, Gail Haponik, Dr. Carl Koenigsmann, Joseph Bellinier, Maureen E. Boll, Brian Fischer, David Rock, Theodore Zerniak, and Donald Uhler, asserting claims under 42 U.S.C. §1983 and New York state law arising out of his incarceration at Upstate Correctional facility. (Dkt. No. 5). Plaintiff alleges that defendants: (1) denied him access to the courts by depriving him of paper, mail, outside communications, and access to the prison law library; and (2) denied him videotapes for and access to inmate grievance procedures. (Dkt. No. 5). Plaintiff originally filed a verified complaint in State of New York Supreme Court, Franklin County on April 16, 2013. (Dkt. No. 1-1). On July 2, 2014, defendants removed the action to this Court. (Dkt. No. 1). On July 7, 2014, defendants moved to dismiss the Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 2). Plaintiff filed an affirmation in opposition to defendants' motion, and sought to remand this action back to State Court. (Dkt. Nos. 6, 7). On December 9, 2014, the Court denied plaintiff's motion to remand. (Dkt. No. 9).
On February 4, 2015, this case was reassigned to the undersigned for all further proceedings. (Dkt. No. 18).
Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United States Magistrate Judge Thérèse Wiley Dancks issued a Report-Recommendation and Order ("Report-Recommendation"), dated March 4, 2015, recommending that defendants' motion to dismiss for failure to state a claim be granted, and that plaintiff be granted leave to amend his claim regarding access to the courts, but denied leave to amend his claim regarding access to the grievance program. (Dkt. No. 19, pp. 10-11). Magistrate Judge Dancks found that plaintiff was not denied access to the courts because he filed myriad federal lawsuits during the time period in which he alleges that he was deprived of paper, mail, outside communications, and access to the prison law library, and therefore, plaintiff failed to plead an actual injury. (Id., p. 9). With respect to plaintiff's claim that he was denied evidence for and access to grievance procedures, Magistrate Judge Dancks found that plaintiff failed to state a claim because prison inmates have no protected constitutional interest in grievance proceedings. (Id., p. 10).
Plaintiff has filed several objections to the Report-Recommendation. (Dkt. No. 20). First, plaintiff objects to the recommended dismissal of his denial of access to the courts claim on the grounds that the Court improperly took judicial notice of other lawsuits plaintiff has brought without giving him the opportunity to be heard. (Id., pp. 7-10). Plaintiff further argues that the Court improperly "resolve[d] [a] factual dispute" regarding his access to the courts, and "did not treat the defendants' motion to dismiss as a motion for summary judgment." (Id., p. 6). Plaintiff also argues that the public records considered by the Court did not include his cases dismissed for failure to prosecute. (Id., p. 12).
Second, plaintiff objects to the recommended dismissal of his claim for denial of access to grievance procedures on the grounds that "Plaintiff's involvement in filing claims against prison officials, and helping others do so, was protected activity as it was an exercise of his right to petition the government for redress of grievances under the First Amendment." (Dkt. No. 20, p. 14). Third, plaintiff objects that the Report-Recommendation "failed to address Johnson's supplemental [state law] claims." (Id., p. 16). Plaintiff argues that access to grievance procedures is protected under New York state law, and therefore, his claims "would be properly adjudicated by this court." (Id.).
Defendants have not responded to plaintiff's objections. For the reasons set forth below, the Report-Recommendation is adopted in its entirety.
II. Standard of Review
This Court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been specifically objected to by plaintiff. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). To be specific, the objection must, with particularity, "identify the portions of the proposed findings, recommendations, or report to which it has an objection and the basis for the objection." N.D.N.Y. L.R. 72.1(c). Under de novo review, the Court must "examine the entire record, and make an independent assessment of the magistrate judge's factual and legal conclusions." Almonte v. N.Y. State Div. of Parole, No. 04 Civ. 484, 2006 U.S. Dist. LEXIS 2926, at *15, 2006 WL 149049, at *5 (N.D.N.Y Jan. 18, 2006) (citing United States v. Raddatz, 447 U.S. 667, 675 (1980)). Findings and recommendations that are not objected to are reviewed for clear error. Petersen, 2 F. Supp. 3d at 229; see also Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. Where only vague or general objections are made, or a party resubmits the same papers and arguments that have already been considered by the magistrate judge, the findings and recommendations are also reviewed for clear error. Petersen, 2 F. Supp. 3d at 228-229. After review, the Court "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C).
A complaint shall be dismissed on defendant's motion when it fails to "state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (emphasis added). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Id. at 679 (internal citation and punctuation omitted). Accordingly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678 (citing Twombly, 550 U.S. at 555).
"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citation omitted). Thus a pro se complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hughes v. Rowe, 449 U.S. 5, 10 (1980). Although pro se complaints must be construed liberally, civil rights complaints "must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
III. Discussion
In view of plaintiff's specific objections, this Court conducts a de novo review of the portions of the Report-Recommendation regarding plaintiff's claims for denial of access to the courts and denial of evidence for and access to inmate grievance procedures.
A. Denial of Access to the Courts
Plaintiff alleges that defendants denied him access to the courts from 2007 to 2013 by depriving him of paper, mail, outside communications, and access to the prison law library. (Dkt. No. 5, pp. 2-3). "A prisoner has a constitutional right of access to the courts for the purpose of presenting his claims, a right that prison officials cannot unreasonably obstruct and that states have affirmative obligations to assure." Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986) (citing Bounds v. Smith, 430 U.S. 817, 821-23 (1977)). To state a claim for denial of access to the courts under §1983, plaintiff must allege facts to plausibly suggest: "(1) a 'nonfrivolous, arguable underlying claim' that has been frustrated by the defendants' actions, and (2) a continued inability to obtain the relief sought by the underlying claim." Arar v. Ashcroft, 585 F.3d 559, 592 (2d Cir. 2009) (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)).
"[T]he right [of access to the courts] is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court." Harbury, 536 U.S. at 415. In order words, plaintiff must demonstrate an "actual injury" by showing that his underlying claim was non-frivolous. Lewis v. Casey, 518 U.S. 343, 351-353 (1996) (reasoning that the "actual injury" requirement means that inmates must "demonstrate that a nonfrivolous legal claim ha[s] been frustrated or was being impeded."). "It follows that the underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint." Harbury, 536 U.S. at 415. Ultimately, "the complaint should state the underlying claim in accordance with Federal Rule of Civil Procedure 8(a), just as if it were being independently pursued." Id. at 417.
Here, plaintiff has failed to state any facts to suggest what underlying claim or claims were allegedly frustrated by defendants. Instead, plaintiff makes a blanket statement "that he was denied access to the Courts, Federal and State, pending criminal and civil proceeding due to the Paper Deprivation Order, from 2007, 2008, 2009, 2010, 2011, and from March-April 2013." (Dkt. No. 5, p. 2). Plaintiff also alleges that he was denied access to the prison law library, postal mail, and outside communications during the same period. (Id., at 3). As for an injury, plaintiff alleges only that "as a result of the Access to the Courts denial Plaintiff has lost all appeals with the Third Department-Supreme Court of the State of New York...And the Supreme Court of the State of New York-Albany County" during the same time period. (Id., at 4).
Thus, while the Complaint contains sufficient facts to plausibly suggest that defendants frustrated his right to access the courts, plaintiff has failed to identify any underlying cause of action. To state a claim for denial of access to the courts, plaintiff must plead the underlying claim and facts to plausibly suggest that it is not frivolous. Plaintiff's allegation that he sustained an injury because he lost appeals in State Court is entirely conclusory because he failed to describe the underlying claims. While a complaint must be construed in the light most favorable to the plaintiff, the complaint must still contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. The Court finds that plaintiff has failed to state a plausible claim for denial of access to the courts because the Complaint alleges no facts to suggest an actual injury.
Plaintiff argues that in recommending dismissal of his claim for denial of access to the courts, Magistrate Judge Dancks improperly took judicial notice of his litigation history. (Dkt No. 20, pp. 7-10). Under Federal Rule of Evidence 201, a court "may take judicial notice on its own" of "a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)-(c). Further, "it is well established that courts may take judicial notice of publicly available documents on a motion to dismiss." In re DDAVP Indirect Purchaser Antitrust Litig., 903 F. Supp. 2d 198, 208 (S.D.N.Y. 2012); see also Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (courts can "look to public records...in deciding a motion to dismiss."). Thus, plaintiff's prolific litigation history, which is a matter of public record, is a proper subject of judicial notice. Liberty Mutual Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) ("A court may take judicial notice of a document filed in another court to establish the fact of such litigation and related filings, but not for the truth of the matters asserted in the other litigation.") (internal citation omitted).
See, e.g., Johnson v. Adams, No. 10 Civ. 1082, 2012 U.S. Dist. LEXIS 104723, 2012 WL 3052957 (N.D.N.Y. July 5, 2012) (recounting plaintiff's litigation history). An additional review of the Public Access to Court Electronic Records database shows that, at a minimum, plaintiff filed federal cases in the Northern District of New York under the following docket numbers from 2007 to 2013: 9:07-cv-00158-LEK-GHL, 9:07-cv-01018-DNH-DRH, 9:07-cv-01237-TJM-DEP, 9:08-cv-00196-DNH, 9:09-cv-00244-DNH-GHL, 9:09-cv-01431-GTS, 9:10-cv-00247-DNH-DRH, 9:10-cv-00342-GLS, 9:10-cv-00436-GLS-RFT, 9:10-cv-00860-FJ-RFT, 9:10-cv-00861-LEK-DEP, 9:10-cv-01082-DNH-DEP, 9:11-cv-00386-GLS-CFH, 9:12-cv-00019-NAM-TWD, 9:12-cv-00091-MAD, 9:12-cv-00329-GTS-DEP.
Moreover, a court may consider matters that are subject to judicial notice, such as plaintiff's past lawsuits, without converting a motion to dismiss into one for summary judgment. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Xiotech Corp. v. Express Data Prods. Corp., ESI, LLC, 11 F. Supp. 3d 225, 234 (N.D.N.Y. 2014). However, the Court has confined its review to the Complaint in assessing plaintiff's denial of access to the courts claim. As discussed above, the Court finds, without reference to plaintiff's litigation history, that the Complaint fails to state a plausible claim for denial of access to the courts.
Accordingly, as recommended by Magistrate Judge Dancks, plaintiff is granted leave to amend the Complaint to plead facts detailing the specific nonfrivolous claim or claims that defendants are alleged to have frustrated. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (A pro se complaint should not be dismissed "without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.") (internal citation omitted). Therefore, plaintiff's objection to the Report-Recommendation regarding his claim for denial of access to the courts is without merit.
B. Denial of Evidence for and Access to Inmate Grievance Procedures
Plaintiff also objects to the recommended dismissal of his First Amendment claim for denial of access to inmate grievance procedures. (Dkt. No. 20, p. 14). In support, plaintiff cites numerous cases where inmates brought First Amendment claims related to issues with the Inmate Grievance Program. (Id.). However, the cases on which plaintiff relies all involve First Amendment retaliation claims. See Gayle v. Gonyea, 313 F.3d 677 (2d Cir. 2002); Graham v. Henderson, 89 F.3d 75 (2d Cir. 1996); Scott v. Coughlin, 344 F.3d 282 (2d Cir. 2003); Morales v. Mackalm, 278 F.3d 126 (2d Cir. 2002). Here, plaintiff alleges that he was denied the full opportunity to file a grievance, not that he suffered retaliation for filing a grievance. Therefore, in the absence of any facts suggesting a First Amendment retaliation claim, the cases cited by plaintiff are inapplicable.
Plaintiff has a constitutional right to petition the government, through the courts, for the redress of "grievances" in the general sense. See Bill Johnson's Restaurants. Inc. v. NLRB, 461 U.S. 731, 741 (1983); Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987). However, specific "inmate grievance programs created by state law are not required by the Constitution, and consequently allegations that prison officials violated those procedures [do] not give rise to a cognizable [Section] 1983 claim." Shell v. Brzezniak, 365 F. Supp. 2d 362, 369-70 (W.D.N.Y. 2005); see also Brown v. Graham, 470 F. App'x 11, 13 (2d Cir. 2012) (holding that a prisoner litigant's claim that he has a "federally-protected liberty interest in the state's compliance with its own prison grievance procedures is meritless."); Alvarado v. Westchester Cnty., 22 F. Supp. 3d 208, 214 (S.D.N.Y. 2014); Mimms v. Carr, No. 09 Civ. 5740, 2011 U.S. Dist. LEXIS 61853, at *30, 2011 WL 2360059, at *10 (E.D.N.Y. June 9, 2011) ("The First Amendment is not implicated . . . where prison officials deny an inmate access to grievance procedures."); Justice v. Coughlin, 941 F. Supp. 1312, 1316 (N.D.N.Y. 1996) ("[M]ere violations of the grievance system do not violate the Constitution.").
In at least two other cases, plaintiff has made precisely the same grievance denial claim, and courts have rejected it for the same reason. See Johnson v. Gonzalez, No. 14 Civ. 745, 2015 U.S. Dist. LEXIS 31516, at *8-9, 2015 WL 1179384, at *5 (N.D.N.Y. Feb. 20, 2015) ("[B]ecause the IGPs are created under state law, and, thus, not required by the Constitution, allegations against prison officials for violation of, or interference with, those procedures cannot give rise to a cognizable claim under § 1983."); Johnson v. Barney, No. 04 Civ. 10204, 2006 U.S. Dist. LEXIS 90398, at *7, 2006 WL 3714442, at *2 (S.D.N.Y. Dec. 13, 2006) ("[I]nmate grievance procedures are not even constitutionally required.").
Thus, even assuming that defendants denied plaintiff evidence for or access to inmate grievance procedures at Upstate Correctional Facility, such facts simply do not implicate the First Amendment or give rise to a constitutional claim. Accordingly, plaintiff's objection to the Report-Recommendation regarding his claim for denial of evidence for and access to inmate grievance procedures is without merit.
C. State Law Claims
Finally, plaintiff argues that his Complaint should not be dismissed because, even if his §1983 claims are dismissed, he has also alleged claims under New York state law. (Dkt. No. 20, pp. 15-18). Liberally construing the Complaint, plaintiff has alleged violations of Article 1, Sections 5 and 6 of the New York State Constitution parallel to his federal claims for denial of access to the courts and denial of evidence for and access to grievance procedures. (Dkt. No. 5, p. 5). However, in light of the dismissal of plaintiff's federal claims, and given the early stage of the case, the Court declines to exercise supplemental jurisdiction over plaintiff's state law claims at this juncture. See 28 U.S.C. § 1367(c)(3); Valencia v. Sung M. Lee, 316 F.3d 299, 306 (2d Cir. 2003). In the event plaintiff amends the Complaint to state a valid claim for denial of access to the courts, the Court will exercise jurisdiction over his state law claims.
In conclusion, after carefully reviewing all of the papers in this action, including Magistrate Judge Dancks's Report-Recommendation, and Plaintiff's Objections thereto, the Court concludes that the Report-Recommendation is correct in all respects.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Report-Recommendation (Dkt. No. 19) is APPROVED and ADOPTED in its entirety; and it is further
ORDERED that defendants' motion to dismiss for failure to state a claim (Dkt. No. 2) is GRANTED, and it is further
ORDERED that plaintiff's claim for denial of evidence for and access to grievance procedures is DISMISSED with prejudice; and it is further
ORDERED that plaintiff's claim for denial of access to the courts is DISMISSED without prejudice; and it is further
ORDERED that within 30 days of the date of this Memorandum-Decision and Order, plaintiff may file an Amended Complaint limited to his claim for denial of access to the courts, to plausibly suggest that he suffered an actual injury; and it is further
ORDERED that if plaintiff fails to file an Amended Complaint within 30 days of this Memorandum-Decision and Order, this action will be dismissed with prejudice; and it is further;
ORDERED that the Clerk of the Court shall serve on the parties a copy of this Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of New York; and it is further
ORDERED that the Clerk of the Court shall provide plaintiff with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
IT IS SO ORDERED. Dated: April 16, 2015
Syracuse, New York
/s/ _________
Brenda K. Sannes
U.S. District Judge