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finding a plaintiff must "demonstrate that the defendant's conduct frustrated the plaintiff's efforts to pursue a nonfrivolous claim."
Summary of this case from Vasquez v. Rockland Cnty.Opinion
No. 14 Civ. 4056 (CM)
10-13-2015
JOSE QUEZADA, Plaintiff, v. RICHARD ROY, et al., Defendants.
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
:
Pro se Plaintiff Jose Quezada brought this action against 21 corrections officers and administrators alleging they violated his First, Eighth, and Fourteenth Amendment rights while he was incarcerated at Green Haven Correctional Facility ("Green Haven"). His main allegations revolve around a campaign of harassment and retaliation that culminated in an assault by several correctional officers in May 2011 ("the May 2011 assault").
The court previously dismissed the complaint as against four of the defendants for failure to allege personal involvement (Docket #146). The remaining defendants now move for partial summary judgment on the ground of qualified immunity.
On August 28, 2015, after almost all of the briefing on this motion was completed, Defendant Tracey Alexander, who had not originally moved for summary judgment, joined in the motion. (Docket #141.) However, there do not appear to be any claims against Defendant Alexander on which Defendants moved for summary judgment. Alexander is alleged to have participated in the May 2011 assault against Plaintiff, but Defendants have not moved for summary judgment on that claim - with good reason, since there is no conceivable way that anyone could be not liable for an assault under the doctrine of qualified immunity (as opposed to not liable on the merits, because nothing happened that actually violated Plaintiff's constitutional rights).
For the reasons stated below, Defendants' motion for partial summary judgment on the ground on which the motion is premised - qualified immunity - is denied. Denial is without prejudice to the State's bringing a motion for summary judgment, at the appropriate time, on the ground that the officers did nothing wrong. In some instances, that will require further embellishment of the evidentiary record.
Defendants are nonetheless entitled to dismissal of several of Plaintiff's claims - not on the ground of qualified immunity, but because the law bars their pursuit. The majority of Plaintiff's First Amendment retaliation claims predicated on verbal harassment must be dismissed because the verbal harassment he describes is no more than de minimis; and his claims for negligence and intentional infliction of emotional distress must be dismissed because those claims are not cognizable under § 1983.
BACKGROUND
Parties
Plaintiff is an inmate who is serving time for manslaughter. He is currently incarcerated in Auburn Correctional Facility in the Northern District of New York; for a period of time between 2006 and 2011 he was incarcerated at Green Haven Correctional Facility, which is located in this district.
Defendants are corrections officers, supervisors, and administrators who worked at Green Haven. In particular, at the time of the events giving rise to the complaint:
• William Lee was the Superintendent;
• Thomas Melville was a Lieutenant;
• Tracey Alexander was a Sergeant;
• John Conforti was a Sergeant;
• Kevin O'Connor was a Sergeant;
• Brenda Surber was a Sergeant;
• Stephanie Mryzglod was a nurse; andThe other Defendants were correctional officers at Green Haven:
• Lori Badger was the head cook.
• Jason C. Brothers;
• Anthony M. Cefaloni;
• Ronald Corbin;
• Matthew Filipponi;
• John Henschel;
• Jeffrey Macisaac;
• Michael Mryzglod;
• Sonya Rojas; and
• Jeffrey Tokarx.
Facts
The facts below are drawn from the complaint, exhibits, and Plaintiff's deposition. For purposes of this motion, the facts are construed in the light most favorable to Plaintiff, as the party opposing summary judgment. See James v. Orange Cnty. Corr. Facility, 2011 WL 5834855, at * 1 (S.D.N.Y. Nov. 18, 2011).
Because Plaintiff is proceeding pro se, the court has construed the allegations in his complaint broadly. As is my custom when defendants move for summary judgment on the ground of qualified immunity, I have allowed him to amplify and clarify the allegations in his pleading via deposition. The purposes of the deposition is to fix, in testimonial form, the totality of the plaintiff's allegations.
Upon his arrival at Green Haven in or about 2006, Plaintiff experienced harassment, which he believes was in retaliation for a federal lawsuit he had filed based on events at his previous correctional facility (the "First Action"). This led Plaintiff to file a second § 1983 suit in February 2009 (the "Second Action"). Several of the defendants in this case (which is the Third Action) - including Officers Macisaac, Cefaloni, and M. Mryzglod, and nurse S. Mryzglod - were named as defendants in the Second Action. (See Quezada 2/12/15 Deposition [hereinafter "Quezada Dep."] at 12-13, Exhibit A to Declaration of Samuel Yaggy in Support of Defendants' Motion for Summary Judgment (Docket #109).)
The gravamen of the current complaint (this is the Third Lawsuit) is that Plaintiff was harassed and retaliated against for having filed the Second Action and for making complaints and filing grievances against Green Haven personnel. (Id.) This behavior essentially went on from 2009, when he filed the Second Action, until 2011, when he left Green Haven. It took a variety of forms, ranging from verbal abuse to assault. Herewith a summary of Plaintiff's contentions, in roughly chronological order:
Denial of Legal Supplies
From September 2009 until April 2010, Plaintiff was confined in the Special Housing Unit ("SHU"). (Quezada Dep. at 29.) During this time, he informed Defendant Conforti that he lacked legal supplies and resources he needed to work on his cases; he lacked pencils, envelopes, and the ability to make copies of documents. (Id. at 27.) Although Conforti was aware of Plaintiff's lack of supplies, he did nothing to remedy it. (Id.) Plaintiff also informed Defendant Lee that he lacked supplies, but Lee did not resolve the situation. (Quezada Dep. at 29; Am. Compl., at ¶ 21-22). Defendant Lee also allegedly directed the law library supervisor to refuse to allow Plaintiff to make copies of court documents unless Plaintiff provided a court order specifying the number of copies he was supposed to provide the court and opposing counsel. (Id. at ¶ 24.)
Plaintiff contends that the defendants denied him supplies to retaliate against him for having filed the Second Action. (Am. Compl., at ¶ 21-22.) The denial of access to legal supplies meant that Plaintiff missed various court-ordered deadlines, in the Second Action, on his CPL 440.10 motion, in his family court case, and in connection with other unspecified matters. (Quezada Dep. at 27-28.) When asked at his deposition precisely what deadlines he missed, however, Plaintiff could not remember what they were. (Id.)
Dangerous Housing Placement
On April 1, 2010, Plaintiff was released from the SHU. (Id. at ¶ 30.) Upon release, he was housed in H-Block, although he had asked Defendant Lee and others to assign him to E-Block or G-Block, because he feared for his safety in H-Block. (Id. at ¶ 27, 30.) Plaintiff wrote several letters complaining about his placement to Defendant Lee and others, claiming that his life was in danger because Officers Macisaac and Cefaloni, who were defendants in the Second Action, worked in H-Block. He also asked to be transferred out of Green Haven. (Id. at ¶¶ 31-43.)
Plaintiff continued to inform various officials about his safety fears and desire to be placed in protective custody or transferred to a cell block away from Officers Macisaac, Cefaloni, and Mryzglod. (See id. at ¶ 26-27.) For example, he told Defendant Lee that these officers "already threatened Plaintiff with assaulting him again." (Id. at ¶ 27.) He also "made several requests to the administration requesting to be transferred for security reasons." (Id. at ¶ 28.)
Defendant Lee denied Plaintiff's transfer request on June 16, 2010. Plaintiff was told he could not be transferred due to a "medical hold." Plaintiff testified that he told Lee that no medical condition necessitated keeping him at Green Haven. (Id. at ¶ 35.) Plaintiff claims that someone in the medical clinic placed "the medical hold again to make sure the Plaintiff stayed in Greenhaven Correctional Facility and be assaulted or even killed." (Id. at ¶ 40.) When asked to specify who had done that, he speculated that Defendant Stephanie Mryzglod was, "perhaps involved with the medical hold." (Quezada Dep. at 57.)
Plaintiff says that Lee denied his request for a transfer out of indifference to Plaintiff's safety at Green Haven. (Id. at ¶¶ 44-45.)
Plaintiff is Called Names
On June 2, 2010, Plaintiff claims that Officers Macisaac and Cefaloni removed him from the law library and then called him a "faggot" in front of Defendant O'Connor. (See Quezada Dep. at 55; Am. Compl., at ¶ 35.)
The Rumor that Plaintiff Was an Informant
On July 28, 2010, Plaintiff informed the Deputy Superintendent of Programs (who is not named as a defendant) that some of the defendants from his prior lawsuit were spreading rumors that Plaintiff was a "snitch." (Id. at ¶ 48.) Plaintiff also filed a complaint with Defendants Lee and Roy against Officers Macissac, Cefaloni, and others, alleging the same thing. (Id. at ¶ 49.) Several inmates questioned Plaintiff about the rumor that he was a "snitch." (Id.)
Shortly thereafter, three unidentified inmates assaulted Plaintiff in the prison yard and accused him of being a snitch. (Id. at ¶ 50.) According to Plaintiff, certain defendants continued to spread rumors that he was a snitch. (Id. at ¶¶ 51-58.)
Diet Card Harassment/Removal from Special Meal Program
On October 27, 2010, while Plaintiff was trying to get a therapeutic diet meal, Officer Henschel warned Plaintiff that he would attack Plaintiff if he made any trouble. (Id. at ¶¶ 60-62.) Plaintiff testified that he did not approach Henschel and tried to avoid contact with him. (Quezada Dep. at 17.) Plaintiff filed a complaint against Officer Henschel on November 4, 2010. (Am. Compl., at ¶ 60.) Defendant Melville investigated the claim but was unable to substantiate it. (Id. at ¶ 62; Melville Investigation Letter, Am. Compl., Ex. 13.)
On December 7, 2010, Officer Henschel threatened and berated Plaintiff again when he went to check in for his diet meal. (Am. Compl., ¶¶ 63-64.) Plaintiff informed Defendant Badger, the head cook, about this confrontation, but could not remember how she responded. (Quezada Dep. at 18.) Plaintiff complained to Captain Burnett and then filed a grievance against Officer Henschel and Badger. (Am. Compl., at ¶¶ 64-65; Grievance GH-70696-10, Am. Compl., Ex. 15.)
On December 8, 2010, Officer Henschel threatened Plaintiff a third time. (Am. Compl., at ¶ 67.) That afternoon, Plaintiff observed Badger and Officer Henschel talking, after which Badger confiscated Plaintiff's diet card. (Id. at ¶ 68.) Badger said she took the card because she observed Plaintiff eating food not on the special diet plan. (Quezada Dep. at 18.) Plaintiff filed a grievance against her on December 23, 2010. (See Grievance GH-70764-11, Am. Compl., Ex. 16.)
Plaintiff was on the regular diet plan for some unspecified amount of time after his special diet card was confiscated. (Quezada Dep. at 18.) He testified that his health suffered after he was removed from the special diet plan, having unspecified "problems with my stomach and other medical problems." (Id.) Three months after he was removed from the special diet plan, Plaintiff was seen in the infirmary, at which time it was medically determined that a "special diet [was] not medically indicated" for him. (See Ambulatory Health Record Progress Note, Am. Compl., Ex. 16.) He testified that he is presently on a special diet plan at his current facility. (Quezada Dep. at 18.)
Defendant Lee denied both grievances arising from the incident, and on appeal the Central Office Review Committee ("CORC") upheld those decisions. (See Grievance GH-70696-10, Am. Compl., Ex. 15; Grievance GH-70764-11, Am. Compl., Ex. 16.)
Plaintiff is Moved Back to H-Block
On January 6, 2011, Plaintiff was told he would be moving from F-Block back to H-Block, where Officers Macisaac and Cefaloni worked. (Am. Compl., at ¶ 73.) Plaintiff refused to transfer and asked either to see his psychologist or to be placed in protective custody, because he feared the defendants working in H-Block. (Id. at ¶ 73.) Defendant O'Connor, the H-Block Supervisor, refused to place Plaintiff in protective custody, allegedly because it was not possible to place someone in protective custody based on his fear of particular officers. (Id. at ¶¶ 75-76.) Instead, O'Connor escorted Plaintiff to the Mental Health Unit. (Id.)
After speaking with his psychologists and Defendant O'Connor, Plaintiff was told he would be moved to H-Block for just two days, and that he would be fed in his cell to avoid any problems with Officers Macisaac, Cefaloni, Henschel, and Michael Mryzglod. (Id. at ¶ 77.)
Once Plaintiff was moved to H-Block and locked in his cell, someone turned off the water and electricity to his cell. (Quezada Dep. at 23; Am. Compl., at ¶ 79.) Plaintiff also did not receive a footlocker for his belongings. (Id.) No one else had any problems with water or electricity. (Quezada Dep. at 23.) He says he saw Officers Cefaloni, Macisaac, and Henschel "go behind the cell," but he did not remember any specific comments from them about the water or electricity. (Id. at 23-24.)
Plaintiff complained about the lack of water and power to Officer Macisaac, who did nothing. (Am. Compl., at ¶ 79.) Plaintiff's family called the facility and complained about his condition. (Id.)
On January 13, 2011, the water and electricity were restored. Plaintiff never received a footlocker. (Id. at ¶ 80.)
Problems With Plaintiff's ID Card
On January 25, 2011, Plaintiff went to Building 12 to interview for transitional services. (Id. at ¶ 85.) While there, Officer Henschel defaced Plaintiff's ID card by writing racist comments on it with a magic marker and throwing it on the floor to make Plaintiff pick it up. (Quezada Dep. at 25.)
On February 3, 2011, Plaintiff returned to transitional services and Officer Henschel defaced Plaintiff's ID card again - this time in front of Plaintiff - and threatened him with a ticket if he tried to retrieve the card before the end of his program. (Am. Compl., at ¶ 87.) Plaintiff complained to two of the teachers in the room. (Id. at ¶ 88.) As he did so, Officer Henschel tried to intimidate him by raising a clenched fist. (Id.)
On February 9, 2011, Plaintiff tried to retrieve his ID card after a class, only to have Officer Henschel say that "he didn't know about the Plaintiff's ID card." (Id. at ¶ 89.) While one of the teachers went to get Plaintiff a new card, Officer Henschel told Plaintiff that he would never give the ID card back if Plaintiff kept making complaints. (Id.) After Plaintiff returned to his cell, another officer brought Plaintiff an ID card. (Id.) Plaintiff was late to a call out while waiting for his new ID card, although he was ultimately able to attend. (Quezada Dep. at 26.) Plaintiff later filed a grievance against Officer Henschel for harassment and retaliation. (See Grievance GH-71071-11, Am. Compl., Ex. 22.)
Plaintiff is Told to Quit Filing Complaints
Sometime in March 2011, Plaintiff was approached by Defendant Brenda Surber, who berated him for filing complaints and lawsuits against officers she supervised. (Quezada Dep. at 35; Am. Compl., at ¶ 90.) Plaintiff tried to leave, but Officers Macisaac and Cefaloni blocked him until Surber told them to let him go. (Am. Compl., at ¶ 91.) Surber told him to stop filing complaints naming her and the officers she supervised; she told him that filing complaints was for women. (Quezada Dep. at 36.) Surber also informed Plaintiff that she was "a martial arts expert." (Id.)
Defendant Lee also told Plaintiff that he filed too many complaints and was becoming "like the child crying wolf." (Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment [hereinafter "Opp. Br."] at 25 (Docket #135).)
Defendant O'Connor also told Plaintiff that other defendants would stop retaliating against him if he stopped filing grievances. (Id.)
Plaintiff's Evidence Bag is Slashed
On March 22, 2011, Plaintiff was scheduled to go to court. (Quezada Dep. at 31; Am. Compl., at ¶ 94.) Officer Michael Mryzglod came to his cell to pack his papers for transit, which filled two new draft bags. (Id.) When Plaintiff arrived at Downstate Correctional Facility to await his court appearance, he discovered that the bottom of one of the bags had been slashed open and several documents were missing. (Quezada Dep. at 32.) He testified that Officer Mryzglod had packed the bags before the trip, but did not travel with them to Downstate. (Id.)
Plaintiff testified that the documents he was missing when he arrived at Downstate were motions and legal books; he could not be more specific about what was missing. (Id.) Plaintiff did not recall whether he submitted a lost property claim for these documents. (Id. at 41.) He believed that an order dismissing something was entered in the Second Action as a result of the loss of his papers; he could not remember more details. (Id. at 33.)
Plaintiff Fails to Receive a Razor
On April 5, 2011, while still out on a court trip, Plaintiff filed a telephone complaint with the Inspector General's office against Surber, Macisaac, Cefaloni, and Michael Mryzglod. (Id. at ¶ 96; 4/5/11 Phone Complaint, Am. Compl., Ex. 25.)
Upon his return to Green Haven on April 8, 2011, Plaintiff did not receive a razor along with his property. (Quezada Dep. at 33-34; Am. Compl., at ¶ 97.) He filed a grievance. When he returned from recreation on April 19, he was told that he had not received a razor because he was out of his cell. (Am. Compl., at ¶ 98.) Plaintiff wrote to Defendant Lee to apprise him of the situation so Plaintiff would not "be issued a Misbehavior Report for not having the razor." (Id. at ¶ 99.) He received a razor the next day, but complained to Defendant Lee that he had not received a receipt for the razor because the defendants were trying to "get [him] in trouble." (Id. at ¶ 100.)
Threats Because of the April 5 Complaint
On April 28, 2011, Sergeant Surber harassed Plaintiff about his April 5 complaint to the Inspector General and threatened to transfer him to Attica Correctional Facility. (Quezada Dep. at 37; Am. Compl., at ¶ 103.) Plaintiff immediately filed another complaint against Sergeant Surber. (Am. Compl., at ¶ 104.) When he tried to give a copy of the complaint to Defendant Lee and Hub Superintendent Ada Perez, Sergeant Conforti took it from him and gave it to Surber. (Id. at ¶ 105; Quezada Dep. at 42.) Plaintiff testified that the complaint was subsequently investigated by Lieutenant Schmitt on May 16, 2011. (Quezada Dep. at 42.)
The Assault on Plaintiff
On May 6, 2011, the block officer told Plaintiff he would be moving to B-Block. (Am. Compl., at ¶ 106.) Another inmate told Plaintiff that Sergeant Surber had arranged for the move so that she could assault or kill Plaintiff. (Id.) Plaintiff informed Defendant O'Connor that he would not move, and said he wanted to see his psychologist. (Id. at ¶ 107.) Defendant O'Connor told Plaintiff he could either go to B-Block or to the SHU. (Id.)
After he moved to B-Block, Plaintiff asked to be put in protective custody or to see his psychologist, a request O'Connor allegedly denied. (Id. at ¶ 108; Cf. Quezada Dep. at 54.)
On May 16, 2011, Plaintiff was interviewed by Defendant Schmitt regarding his complaint against Surber, Macissac, and Cefaloni. (Am. Compl., at ¶ 111.) After this interview, Plaintiff had a visit from his attorney. (Id. at ¶ 112.) While Plaintiff was waiting to return to his cell, he saw Sergeant Surber enter the building, notice him, and leave. (Quezada Dep. at 37.) Officer Brothers then told Plaintiff, "I'll see you later." (Id. at 38; Am. Compl., at ¶ 113.)
When he returned to his cell, Plaintiff was told that he was in transit; he did not know if he was being transferred to another facility or in transit for a court appearance. (Id. at ¶ 114.) Shortly thereafter, Officer Macisaac entered Plaintiff's cell. According to Plaintiff, Officer Macisaac screamed, "Drop the weapon!" and then cut himself. (Id. at ¶ 116.) Officer Matthew Filipponi then entered Plaintiff's cell and yelled, "Stop resisting!" (Id. at ¶ 117.) Officers Macisaac and Filipponi, along with Officers Corbin, Tokarz, and Brothers, allegedly proceeded to assault and beat Plaintiff. (Id. at ¶¶ 118-19.) Sergeant Alexander allegedly watched and did nothing, at one point joining in on the assault. (Id. at ¶ 119.) Defendants then allegedly took Plaintiff out of his cell and continued to beat him in front of Defendant Melville, who did nothing to stop it. (Id. at ¶ 120.) Officer Sonya Rojas allegedly watched as well. (Id.)
Sergeant Alexander then told the other defendants to take Plaintiff to the SHU. (Id.) On the way, Officers Corbin and Brothers allegedly continued to beat Plaintiff. (Id. at ¶ 121.)
When Plaintiff arrived at the SHU, he was examined by Nurse D. Gusattney, who examined him superficially and wrote a false report of his injuries based on Sergeant Alexander's statements. (Id. at ¶ 122.) However, when he was examined by Dr. Ventivena, he was transferred to St. Luke's Hospital on the doctor's orders. (Id.)
While Plaintiff was awaiting transfer, a detective from the State Police interviewed him and told him that two other detectives had found a razor blade in his cell. (Id. at ¶ 123.)
Plaintiff was also interviewed by two investigators from the Inspector General's office as he was traveling through Green Haven in transit to the hospital. (Id. at ¶¶ 124-25.)
Plaintiff says he suffered "cuts and lacerations on his body, left shoulder, legs and multiple other injuries including a fracture on his back, dislocation in his right shoulder," and other "serious injuries." (Id. at ¶ 127.) After being treated at the hospital, he was transferred to Shawangunk Correctional Facility. (Id. at ¶ 128.) Ultimately, a disciplinary hearing was held at Shawangunk, at which Plaintiff was accused of having a weapon in his cell and assaulting an officer.
Many other events are alleged in the complaint and amended complaint, but they occurred outside this district and are the subject of a different lawsuit now pending in the Northern District of New York (the "Fourth Action").
SUMMARY OF CLAIMS
Like most pro se complaints, Plaintiff's is not a model of clarity. The separate "causes of action" he lists - nine in total - do not always separate out his various claims, let alone clearly identify the constitutional or statutory authority under which each claim is brought. Many individual causes of action describe multiple claims together, and other causes of action seem needlessly duplicative. Based on a liberal reading of the facts alleged in Plaintiff's Amended Complaint and the causes of action he lists, the court understands Plaintiff to assert the following claims, which I use to organize this opinion:
1. First Amendment access to courts claims based on: (a) denial of legal supplies, and (b) Mryzglod's slashing Plaintiff's bag;
2. Eighth Amendment deliberate indifference claims for: (a) Lee's refusal to transfer Plaintiff or otherwise protect him from harm, (b) O'Connor's refusal to place Plaintiff in protective custody, (c) Henschel's and Badger's removing Plaintiff from the special diet plan, and (d) multiple defendants' failure to prevent or intervene to stop the May 2011 assault;
3. Eighth Amendment excessive force claims for: (a) spreading rumors that Plaintiff was a snitch, and (b) the May 2011 assault;
4. Fourteenth Amendment due process claims for false testimony provided during the disciplinary proceeding arising from the May 2011 assault;
5. First Amendment retaliation claims for: (a) verbal harassment, (b) harassing conduct, and (c) the May 2011 assault and Plaintiff's false punishment for it; and
6. Miscellaneous claims for: (a) negligent hiring, retaining, training, and supervising claims, and (b) intentional infliction of emotional distress for the retaliation, harassment, and assault.
PROCEDURAL HISTORY
Plaintiff filed his original complaint in this court on May 7, 2013. (Docket #3.) Because Plaintiff was incarcerated at Auburn and alleged numerous events that took place at that facility, this court transferred the action to the Northern District of New York on July 22, 2013. (Docket #15.)
On October 7, 2013, Plaintiff filed an Amended Complaint, which he describes as "virtually identical to the original Complaint . . . except that the amended complaint identified by name three John Doe defendants included in the complaint." (See Plaintiff's Memorandum of Law in Opposition to Defendants' Partial Motion to Dismiss Amended Complaint at 2, Docket #134.)
On March 31, 2014, the Northern District severed the claims arising out of events at Green Haven from the claims arising out of correctional facilities located in the Northern District, and transferred the Green Haven claims back to this court. (Docket #38.) The case was given a new docket number, which is why this case bears a 2014 civil action number, even though it was actually filed in 2013.
Defendants indicated an intent to move for summary judgment on the ground of qualified immunity on December 15, 2014. (Docket #83.) In accordance with this court's rules, Plaintiff was deposed and the motion was briefed thereafter.
DISCUSSION
I. Legal Standard
A motion for summary judgment should be granted when "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Cortes v. MTA New York City Transit, 2015 WL 5166342, at *4 (2d Cir. Sept. 4, 2015) (quotation marks and citation omitted). That is no less true of a motion for summary judgment on the ground of qualified immunity than on any other motion. However, there are special considerations when the motion for summary judgment is made on that ground.
Qualified immunity exists to protect government employees from civil liability where performance of their discretionary functions "does not violate clearly established statutory or constitutional rights of which a reasonable person should have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009). The immunity defense is available so long as reasonably competent officials could disagree about whether the conduct at issue would violate clearly established rights. Malley v. Briggs, 475 U.S. 335, 341 (1986); Carrier v. Lussier, 955 F.2d 841, 846 (2d Cir. 1992). Thus, "qualified immunity protects all but the plainly incompetent or those who knowingly violate the law." Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Malley, 475 U.S. at 341).
In Saucier, the Supreme Court said that a court confronted with a qualified immunity defense should ask two questions. First, the court should determine whether the plaintiff alleged facts sufficient to demonstrate a violation of a constitutional right. If the answer is yes, the plaintiff has alleged such facts, the court should then decide whether the right was clearly established at the time of the alleged misconduct. See Saucier, 533 U.S. at 201, 121 S.Ct. at 2156. Although the Saucier court directed that the questions be addressed in that order, the Supreme Court later recognized that district courts should have discretion to decide in what order to address the two questions, because "There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right." Pearson, 555 U.S. at 236-37. Thus, this court need not reach the issue of whether the facts before it make out a constitutional question if it finds that defendants could not possibly have violated any clearly established statutory or constitutional right.
"Because qualified immunity is an immunity from suit rather than a mere defense to liability," it should be decided at the earliest appropriate stage of litigation, which is usually on a motion for summary judgment. See Drimal v. Tai, 786 F.3d 219, 225 (2d Cir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009). When deciding a motion for summary judgment on the ground of qualified immunity (like this one), the court asks the two Saucier questions while assuming the truth of plaintiff's allegations and without regard to any objection defendants may have to the truth of plaintiff's version of events. Tellier v. Fields, 280 F.3d 69, 74 (2d Cir. 2000); Plunkett v. City of New York, 2011 WL 4000985, at *6 (S.D.N.Y. Sept. 2, 2011).
This court finds it frequently the case that the Attorney General will file a notice of motion for summary judgment on the ground of qualified immunity, but then make arguments that have nothing to do with qualified immunity - for example, he will argue that the plaintiff's pleading fails the plausibility test of Twombly/Iqbal, or that the plaintiff fails to plead facts that, if true, make out a constitutional violation. E.g., Espinoza v. City of New York, 2012 WL 4761565, at *1 (S.D.N.Y. Aug. 3, 2012). But as the Second Circuit reminded us in Stephenson v. Doe, 332 F.3d 68, 78 (2d Cir. 2003), the merits of a claim are distinct from the issue of qualified immunity. There are times when a public official is entitled to dismissal or summary judgment, "not because of qualified immunity, but because he did nothing wrong." Dolson v. Vill. of Washingtonville, 382 F. Supp. 2d 598, 602 (S.D.N.Y. 2005). There are also technical defenses to claims, such as the statute of limitations. When the Attorney General is making such arguments, it is wrong to invoke qualified immunity; rather, the case should be defended on the ground that the Defendants are simply not liable. If that requires further evidence, he should make a motion for summary judgment on the merits at the appropriate time, which is after the plaintiff has had an opportunity to take discovery.
This case is no exception to the usual rule that Section 1983 defendants tend to conflate qualified immunity with other grounds for pre-discovery dismissal. Ironically, the only time Defendants touch on a real qualified immunity argument, they do so in their reply papers, in contravention of the rule that arguments cannot be raised for the first time in reply. Knipe v. Skinner, 999 F.2d 708, 710 (2d Cir. 1993).
I would ordinarily deny such a motion in its entirety because Defendants did not move on proper grounds; but here Defendants are obviously entitled to partial dismissal - although not because of qualified immunity - because several of Plaintiff's claims manifestly do not rise to the level of a constitutional violation or are simply not actionable under § 1983. I deny the rest of the motion, but denial is without prejudice to the assertion of those arguments on a proper motion addressed to the merits. No such motion will be entertained until discovery has concluded.
There is one more preliminary issue to address. Under this court's individual rules, such a motion for summary judgment is decided on the basis of the allegations of plaintiff's complaint, as fleshed out in plaintiff's deposition (which is taken for the purpose of getting his full story). Consideration of the deposition allows plaintiff (who may be an unsophisticated litigant) to fill in the gaps in his pleading. The court does not take testimony from defendants or consider their version of events (which frequently does not correspond to plaintiff's version of events).
Notwithstanding the fact that the deposition is an aid to him, Plaintiff argues that Defendants should not be allowed to rely on his deposition in making this motion, because he did not receive formal notice of the deposition 30 days in advance. His objection is without merit; Plaintiff had ample notice that he was going to be deposed.
Defendants filed their bare notice of motion invoking qualified immunity on December 15, 2014. Under this court's rules, they had thirty days to depose Plaintiff.
On December 24, 2014, Defendants submitted a letter requesting an extension of time to take Plaintiff's deposition, which I granted. Defendants stated that they were preparing to take the deposition via videoconference at Five Points Correctional Facility, where Plaintiff was incarcerated. Plaintiff was copied on that letter.
On January 28, 2015, Defendants advised the court by letter that when they attempted to depose Plaintiff by videoconference, he objected to going forward, because he did not have his hearing aid and so could not hear the questions well. Defendants adjourned the deposition so that it could be taken in person, where Plaintiff would not have difficulty hearing. I granted them until February 19, 2015 to depose Plaintiff. Plaintiff was also copied on this letter.
Defendants deposed Plaintiff in person on February 12, 2015. Plaintiff again objected to going forward, this time on the ground that he did not prepare adequately because he had not yet received a notice of the deposition. Apparently, the formal notice Defendants sent to Plaintiff reached a correctional facility at which Plaintiff no longer resided, which meant that he did not receive a copy until the day of the deposition. Nonetheless, Plaintiff was questioned and did respond to questions - although he now argues that he would have responded more fulsomely had he realized that he was going to be deposed and prepared accordingly.
Plaintiff's argument is specious. Whether or not he received a piece of paper legended "notice of deposition," he was obviously on notice, because he showed up for his video deposition in January 2015 and was present when Defendants adjourned the deposition due to Plaintiff's claimed inability to hear the questions that were being put to him. Additionally, Plaintiff was sent and does not deny receiving copies of Defendants' various letters to this court seeking adjournments and extensions of time to complete the deposition, as well as the court's memo endorsements setting the deadline for him to be deposed.
In short, Plaintiff could not possibly have been surprised by being questioned under oath about the allegations in his pleading. If Plaintiff did not choose to prepare for a deposition that he knew was going to take place, that is his problem; and if he elected not to respond fully to the questions that were put to him, he is bound by the record he has made. His deposition testimony is part of the record on this motion and will be considered.
II. Defendants' Motion for Summary Judgment is Granted in Part and Denied in Part
Defendants have not moved for summary judgment on all of Plaintiff's claims. They move for summary judgment - listing qualified immunity as the sole basis for dismissal - on the following claims only:
1. All First Amendment access to court claims;
2. The Eighth Amendment deliberate indifference claim predicated on Plaintiff's removal from the special diet plan;
3. The Fourteenth Amendment due process claim for false testimony offered during Plaintiff's disciplinary proceeding arising from the May 2011 assault;
4. First Amendment retaliation claims for verbal harassment; and
5. Miscellaneous claims relating to negligent hiring, retaining, training, and supervising and intentional infliction of emotional distress.
Defendants have not moved for summary judgment on Plaintiff's Eight Amendment claims for excessive force, failure to intervene, or failure to protect, or his First Amendment retaliation claims based on harassing conduct or related to the May 2011 assault. Those claims are not discussed below.
A. Defendants are not entitled to dismissal of Plaintiff's First Amendment access to courts claims
"It is well established that all persons enjoy a constitutional right of access to the courts," which "extends beyond mere physical access to a courtroom and a judge." Monsky v. Moraghan, 127 F.3d 243, 246 (2d Cir. 1997). For prisoners challenging their sentences or conditions of confinement, "the right of access may include affording prisoners who are preparing legal papers adequate law libraries or adequate assistance from persons trained in the law." Id. (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977).
"In order to establish a constitutional violation based on a denial of access to the courts, a plaintiff must show that the defendant's conduct was deliberate and malicious, and that the defendant's actions resulted in an actual injury to the plaintiff." Collins v. Goord, 581 F. Supp. 2d 563, 573 (S.D.N.Y. 2008). "To show actual injury, the plaintiff must demonstrate that the defendant's conduct frustrated the plaintiff's efforts to pursue a nonfrivolous claim." Id.
Plaintiff alleges two separate violations of his First Amendment right to access the courts. First, he claims that Sergeant Conforti and Superintendent Lee were aware he lacked adequate supplies to work on his ongoing legal cases and did nothing to resolve the situation. Second, he claims that Officer Mryzglod caused the loss of his legal documents while Plaintiff was in transit to Downstate Correctional Facility.
Defendants also characterize another incident as an access to court claim - when Sergeant Conforti took a copy of Plaintiff's complaint against Surber and gave it to Surber instead of Hub Superintendent Ada Perez. Plaintiff, however, does not describe this as an access to court claim. Rather, Plaintiff says that Conforti took the complaint and showed it to Surber so that Surber could retaliate against Plaintiff for naming her in the complaint. In other words, this allegation is simply is part of the evidentiary chain on his retaliation claim against Surber. As Plaintiff is master of his complaint, I accept his characterization of the pleading and will ignore Defendants'.
1. Adequate Legal Supplies
Plaintiff claims that he notified Defendants Conforti and Lee that he lacked the legal supplies needed to work on his cases while he was in the SHU - between September 2009 and April 2010. (Quezada Dep. at 27, 29.) Plaintiff also wrote to Defendant Lee about needing pens, paper, and envelopes to do his legal work, but Plaintiff does not date these complaints. (See Quezada Dep. 27-28.)
Plaintiff also claims that Defendant Lee directed the law library supervisor to refuse to allow Plaintiff to make copies (presumably of legal papers for his cases) unless Plaintiff provided a court order specifying the number of copies he was supposed to provide the court and opposing counsel. (Am. Compl., at ¶ 24.) But he does not further describe this incident or when it occurred.
Defendants have not established that Lee and Conforti are entitled to qualified immunity on this claim. First, they did not even argue qualified immunity in their moving brief; rather, they argued that this claim should be dismissed because there is no evidence that the lack of proper supplies resulted in any specific adverse action being taken against him in his cases. That argument has nothing whatever to do with qualified immunity. What Defendants actually suggest is that Plaintiff has not offered evidence to prove all the necessary elements of the constitutional tort of denial of access. Put otherwise, they argue that they are entitled to dismissal because Plaintiff cannot prove that they did anything wrong. Their motion is denied to the extent it is so predicated.
In their Reply Brief, Defendants finally make an argument that appears to be addressed to qualified immunity. They argue that, even if Plaintiff were prejudiced in one or more of his cases, the viability of such "backward-looking" access to court claims - claims that point backward to a past deprivation of access to courts - is not clearly viable in this circuit. They cite to Jean-Laurent v. Lawrence, 2015 WL 1208318, at *3 (S.D.N.Y. Mar. 17, 2015), in which my colleague, Judge Oetken, held that, "The Second Circuit has emphasized, however, that the viability of backward-looking claims is far from clear, pointing out that the Supreme Court's Harbury decision was careful not to endorse their validity."
This argument could simply be ignored, since arguments first raised in reply are not ripe for consideration. Knipe v. Skinner, 999 F.2d 708, 710 (2d Cir. 1993). However, Defendants misconstrue the qualified immunity inquiry, which questions whether the right allegedly violated was clearly established at the time of the officer's conduct. It is undisputed that Plaintiff had a right of access to the courts at the time he claims he was denied the supplies he needed to take advantage of that right - the right of access was clearly established. As the Second Circuit said in Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir. 2007): "Today we have clarified that Russo's claim should be treated under the Fourth Amendment, rather than under substantive due process. But this clarification is of no consequence to the question of whether the right was clearly established, because the proper inquiry is whether the right itself—rather than its source—is clearly established." Id. at 212 (emphasis in original) (quotation marks and citation omitted). In other words, the question for qualified immunity purposes is whether the right was clearly established at the time of the official's actions, not whether the claim would be viable if brought later in time. In the same way that a time-barred claim does not entitle a defendant to qualified immunity, a backward-looking claim - if one is truly not viable in this circuit - does not entitle a defendant to qualified immunity. Defendants may be able to obtain dismissal of a backward-looking access to court claim, but they are not entitled to qualified immunity for it.
Finally, I turn to the possibility that the claim must be dismissed as against Conforti and Lee because it is barred by the applicable statute of limitations.
The statute of limitations for § 1983 cases filed in New York is three years. Dory v. Ryan, 999 F.2d 679, 681 (2d Cir. 1993). Plaintiff's original complaint arrived at the pro se office of this court on May 7, 2013. "It is well-settled, however, that the date of filing a federal complaint by a pro se prisoner is, for statute of limitations purposes, the date of delivery to prison authorities." Walker v. Jastremski, 430 F.3d 560, 562 n.1 (2d Cir. 2005). Although nothing in the record indicates the date on which Plaintiff delivered his complaint to prison authorities, the handwritten date on Plaintiff's complaint is April 25, 2013. It is thus reasonable to conclude that Plaintiff submitted his complaint to prison authorities sometime between April 25 and May 7, 2013. To give Plaintiff the benefit of the doubt, the court will consider timely any allegations concerning events that occurred on or after April 25, 2010.
Even with that concession, it appears that Plaintiff's denial of access claim relating to the period when he was in the SHU must be dismissed as time barred. Plaintiff was released from the SHU on April 1, 2010 - more than three years prior to the filing of his complaint, even assuming that the correct filing date for our purposes is April 25, 2013. But the period when he alleges he was denied access to legal supplies is the period when he was in the SHU. As that period ended on April 1, 2010, he sued three and a half weeks too late.
Had Defendants moved to dismiss this claim on statute of limitations grounds, Plaintiff would have been on notice that he had to respond to such a motion - which is not a motion for summary judgment on the ground of qualified immunity (one is not qualifiedly immune from suit because the statute of limitations has run; one is absolutely immune from suit!). Had Plaintiff been on notice, he might have been able to argue that the limitations period should be tolled for some reason or other. Because Plaintiff had no opportunity to make that argument, I decline to enter an order dismissing this claim as time-barred. This issue will undoubtedly be raised on a post-discovery motion for summary judgment; Plaintiff is now on notice that will have to convince me that there is a reason to toll the statute of limitations. Otherwise, his denial of access claim arising from the lack of supplies while he was in the SHU will have to be dismissed.
2. Lost Legal Documents
Plaintiff claims that, when he arrived at Downstate Correctional Facility in March 2011 for a court appearance, he discovered that one of the bags he packed with legal documents was slashed open and the documents were missing. (Quezada Dep. at 31; Am. Compl., at ¶ 94.) Plaintiff blames Defendant Michael Mryzglod for slashing open the bag. (Id.)
Once again, Defendants move on grounds that have nothing to do with qualified immunity. On a pre-discovery motion for qualified immunity the court assumes that Mryzglod deliberately slashed Plaintiff's bag open, and asks whether (1) slashing open the bag rises to the level of a constitutional tort; and (2) if it does, was that right clearly established by Supreme Court precedent at the time of the slashing. Defendants never mention those issues. Instead, movants argue that, at his deposition, Plaintiff could provide no hard proof that Mryzglod (or any of the named defendants) was the person who actually slashed his bag. All Plaintiff testified was that he had a basis for believing that Mryzglod slashed his bag:
Q: So, did you see the bags at any time between when Officer Mryzglod packed them and when you arrived at Downstate?(Quezada Dep. at 33.) That testimony, which I assume to be true for purposes of this motion, admits of an inference that Mryzglod was in a position, by virtue of his job responsibilities, to slash the bag. Slashing the bag could have only one intended consequence: allowing the contents (Plaintiff's legal papers) to fall out.
A: When he finished and he sealed it and I signed my receipt, he took the bag to where he works at, to where he works at [sic], that nobody could go there either, no prisoner could go there. He is responsible for that. And he is the one also that would put it inside the bus. And it is his name that's on the receipt on the bag, that he is the one that package it, prepared it.
Of course Plaintiff's conjecture does not definitively prove that Mryzglod slashed the bag - for one thing, Plaintiff admitted that Mryzglod did not travel on the bus with the bag. (Id. at 32, 34.). But while the case is circumstantial and the proof weak, the inference is there. The State does not suggest that an inmate's right to have his legal papers interfered with was unsettled, and the Attorney General does not argue that a corrections officer is privileged to slit a bag containing an inmate's legal papers without having a good faith belief that contraband or evidence of a crime might be found inside. It is of course possible that whoever slit the bag can defend his conduct by asserting that there was some reason to believe it contained contraband. But that defense goes to the merits, not qualified immunity; and it can be raised only when the Defendants are allowed to put in their evidence.
Defendants again argue that Plaintiff has failed to identify any "actual loss" that he suffered as a result of the loss of the papers that were in the bag, which is a necessary element of a claim for denial of access to the courts. But that argument, like the argument that Plaintiff's evidence about Mryzglod's participation is less than persuasive, is addressed to the sufficiency of Plaintiff's case - not to qualified immunity. Plaintiff was unable to identify what documents he lost as result of the slashed bag; he testified at his deposition, however, that their loss prejudiced his ability to pursue his claims in the Second Action. (See Quezada Dep. at 32-33.) To refute that claim, Defendants cite the docket sheet for that case, which reveals that my colleague Judge Cote refused Quezada's request for an extension of time (his fifth) to file an opposition to the defendants' summary judgment motion after Mryzglod allegedly destroyed his papers, but still "construed each of Quezada's statements in the complaint in this action and in his grievances as if they had been reasserted by Quezada in an affidavit in opposition to the summary judgment motion." Quezada v. Ercole, et al., No. 09 Civ. 2832 (DLC) (S.D.N.Y), Docket #83 at 8-9. Furthermore, several of the claims survived summary judgment, and the case ultimately settled. See id., Stipulation of Settlement (Docket #113). But that is an evidentiary argument addressing the merits - it does not assume the truth of Plaintiff's claim, as required on a pre-discovery motion for summary judgment on the ground of qualified immunity.
Plaintiff also argues that he lost his CPL 440.10 motion because he was not able to submit documents that Mryzlod caused him to lose. Opp. Br. at 22. Defendants respond that Plaintiff would have lost the motion anyway because, in denying the motion, the state Supreme Court held, "In previous motions, Defendant has raised or had the opportunity to raise every issue contained in the instant motion. Therefore, CPL § 440.10(2) requires the Court to deny their [sic] motion." Supreme Court Decision, Plaintiff's Appendix, Ex. 88 at pg. 8. But the court also said that it "has no method to determine the veracity of [several miscellaneous] claims because Defendant has not supplemented his motion with any exhibits or affirmations made under oath supporting these assertions." Id.
Again, the purported lack of injury to which Defendants point - using evidence, which is absolutely prohibited under my rules on a pre-discovery qualified immunity motion (because I am not interested in Defendants' side of the story) - does not render Mryzglod immune from suit; it means he is not liable on the merits, because Plaintiff has failed to prove an element of his claim. If it be true that Plaintiff suffered no prejudice in the pursuit of any of his claims in the Second Action, then the denial of access claim against Mryzglod must be dismissed, not on qualified immunity grounds, but because Plaintiff has not established all the elements of a constitutional tort. Defendants are free to raise their merits-based arguments on a proper motion for summary judgment - one that gives Plaintiff notice of what their arguments are and that alerts him to the need to respond with evidence raising a genuine issue of material fact.
As Defendants have not suggested any reason why Mryzglod is entitled to qualified immunity (as opposed to why he might not be liable on the merits), the pending motion is denied. Again, denial is without prejudice to the assertion of this argument on a motion for summary judgment on the merits.
B. Defendants are not entitled to dismissal of Plaintiff's Eighth Amendment deliberate indifference claim for removing Plaintiff from the special diet plan
Defendants move for summary judgment on Plaintiff's Eighth Amendment claim for deliberate indifference to his medical needs when Henschel and Badger removed him from the special diet plan; they have not moved on Plaintiff's other deliberate indifference claims. Although Defendants characterized some incidents of harassing conduct as Eighth Amendment claims, those incidents should be considered instances of purported First Amendment retaliation (see below, page 37), because that is how Plaintiff characterizes them in his complaint and opposition papers. Defendants have not moved for summary judgment dismissing those retaliation claims, and I do not address them here because they are not Eighth Amendment claims.
Plaintiff claims that Defendants Henschel and Badger blocked his access to the therapeutic diet meal on several occasions. He also alleges that he was removed from the therapeutic diet program when Badger confiscated his diet card on December 8, 2010. (Quezada Dep. at 18; Am. Compl., at ¶¶ 67-68.) He testified that he was not on the special diet plan for some indeterminate time thereafter, (Quezada Dep. at 18), but he concedes that, by October 31, 2011, he was again receiving therapeutic diet meals, (Opposition Br. at 15).
Plaintiff testified that he was told that he was removed from the diet plan for exchanging his food for donuts from another inmate, which he claims were not on the menu that day. (See Quezada Dep. at 18.)
The Eighth Amendment requires prison officials to "provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citation and quotation marks omitted). Prison officials are required to provide inmates with "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, 14 (2d Cir. 1983).
To find an Eight Amendment violation, two requirements must be met:
First, the deprivation alleged must be, objectively, sufficiently serious; a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities . . . .Id. at 834 (citations and quotation marks omitted).
The second requirement follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. To violate the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable state of mind. In prison-conditions cases that state of mind is one of "deliberate indifference" to inmate health or safety,
"Prison officials violate the Eighth Amendment if they are deliberately indifferent to an inmate's serious medical needs by denying or delaying his access to medical care or by intentionally interfering with his treatment." Abdush-Shahid v. Coughlin, 933 F. Supp. 168, 179 (N.D.N.Y. 1996) (citing Estelle v. Gamble, 429 U.S. 97 (1976)). According to the Second Circuit:
Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm. More specifically, a prison official does not act in a deliberately indifferent manner unless that official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quotation marks and citation omitted).
Plaintiff claims that he suffered from serious medical issues necessitating a special therapeutic diet. (Quezada Dep. at 18.) Defendants argue that Plaintiff's testimony about his stomach issues did not indicate the level of serious harm contemplated by the Eighth Amendment, and that the medical records Plaintiff attached to his complaint show only unspecified stomach trouble. (See Ambulatory Health Record Progress Note, Am. Compl., Ex. 16.)
As with Defendants' arguments on the other claims, "that has nothing whatever to do with qualified immunity. Qualified immunity protects a public official who has committed a constitutional violation from being held liable for that violation." Dolson v. Vill. of Washingtonville, 382 F. Supp. 2d 598, 602 (S.D.N.Y. 2005) (emphasis in original). Because Defendants present no arguments to support granting summary judgment on qualified immunity grounds, that motion is denied. Of course, it may eventually be possible to grant summary judgment on this claim on the ground that taking removing Plaintiff from the diet plan does not rise to the very high level of an Eight Amendment violation - possible, that is, once the record contains a clearer picture of Plaintiff's medical status and the reason (if there was one) why he was receiving a special diet in the first place. At present, all I know is that Plaintiff is (or claims to be) on a special restricted diet at his new prison facility - which raises the possibility that he might have required the same treatment at Green Haven.
To the extent that Plaintiff also describes his removal from the special diet plan as a form of retaliation, Defendants confirm that they "did not move for qualified immunity on the alleged retaliation claims, only on the deliberate indifference claim." See Reply Br. at 4.
C. No Fourteenth Amendment denial of due process claims are pending before this court
Although Plaintiff's complaint pleads alleged due process violations, he concedes in his opposition papers that all but one of these claims are more properly characterized as retaliation claims, deliberate indifference claims, or failure to protect claims. (See Opposition Br. at 36.) The events giving rise to these claims have either already been discussed in this opinion or constitute claims on which the moving defendants have not sought summary judgment at this time.
The one claim that Plaintiff continues to press as a due process violation is the claim that Officers Macisaac and Cefaloni lied at a disciplinary hearing in which Plaintiff was sentenced to five years in the SHU. This disciplinary hearing took place at Shawangunk Correctional Facility. As far as this court knows, any claim arising out of that incident has been severed from this action and is being handled in the Northern District of New York. See Docket #38. If that is not true, someone needs to advise me immediately.
D. Defendants are entitled to dismissal of some of Plaintiff's First Amendment retaliation claims predicated on verbal harassment - not because of qualified immunity, but because the verbal harassment is on its face de minimis
Plaintiff alleges that all of the remaining defendants retaliated against him in some way for having exercised his First Amendment rights by commencing the Second Action and filing grievances. His claims of First Amendment retaliation can be placed into three groups: verbal threats and warnings; harassing conduct; and actions relating to the 2011 assault, which Plaintiff claims was motivated by a desire to retaliate.
"To prevail on a First Amendment retaliation claim brought under 42 U.S.C. § 1983, a prisoner must demonstrate (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." Ford v. Palmer, 539 F. App'x 5, 6 (2d Cir. 2013) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)).
Filing lawsuits and prison grievances is protected conduct. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996); Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002).
To constitute adverse action, the prison official's conduct must be such that it "would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001) overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002). "In making this determination, the court's inquiry must be tailored to the different circumstances in which retaliation claims arise, bearing in mind that prisoners may be required to tolerate more than average citizens, before a retaliatory action taken against them is considered adverse." Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (quotation marks, citations, and alterations omitted).
The inquiry is an objective one, which "applies even where a particular plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits." Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004). Because it is an objective inquiry, sufficiently serious verbal threats can constitute "adverse action." Ford, 539 F. App'x at 7. In addition, "An allegation that a prison official filed false disciplinary charges in retaliation for the exercise of a constitutionally protected right, such as the filing of a prison grievance, states a claim under § 1983." Gayle, 313 F.3d at 682.
"Several factors come into play in determining whether a causal connection exists: (1) the temporal proximity between the plaintiff's protected activity and the defendant's adverse action, (2) the prior disciplinary record of the inmate, (3) the outcomes of any hearings regarding the allegedly retaliatory charges, and (4) any statements defendant makes concerning his motive." Davidson v. Bartholome, 460 F. Supp. 2d 436, 444 (S.D.N.Y. 2006). "Temporal proximity between an inmate's lawsuit and disciplinary action may serve as circumstantial evidence of retaliation." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
Even if the plaintiff makes an initial showing of retaliation, that does not end the inquiry. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). "Regardless of the presence of retaliatory motive . . . a defendant may be entitled to summary judgment if he can show dual motivation, i.e., that even without the improper motivation the alleged retaliatory action would have occurred. Plaintiff has the initial burden of showing that an improper motive played a substantial part in defendant's action. The burden then shifts to defendant to show it would have taken exactly the same action absent the improper motive." Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003).
The Second Circuit has cautioned that, "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) (quotation marks omitted). "Recognizing the possibilities for abuse with respect to retaliation claims, the Circuit has insisted on a higher level of detail in pleading them." Shariff v. Poole, 689 F. Supp. 2d 470, 478 (W.D.N.Y. 2010) (quoting Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987). And of course in this case we have, not just the pleading, but the testimony of Plaintiff as well.
1. Verbal Threats and Warnings
Plaintiff claims that Defendants Macisaac, Cefaloni, Henschel, and Surber called him names, threatened him, and verbally harassed him in retaliation for engaging in protected conduct.
These defendants seek summary judgment on the five claims of retaliatory verbal harassment listed below:
• In retaliation for filing a lawsuit against them, Defendants Macisaac and Cefaloni made a false call out to the law library to remove Plaintiff and then called him a "faggot." (See Am. Compl. ¶ 35; Quezada dep. at 55.)(See Defendants' Memorandum of Law in Support of Defendants' Motion for Summary Judgment at 18 (Docket #108).)
• On October 27, December 7, and December 8, 2010, defendant Henschel verbally harassed Plaintiff for prior grievances against Henschel and other defendants. (See Harassment & Retaliation Complaint, Am. Compl., Ex. 14; Complaint against Lori Badger, Am. Compl., Ex. 16; Am. Compl., ¶¶ 63-64.)
• On January 25, February 3 and February 9, 2011, Henschel allegedly harassed and threatened Plaintiff in retaliation for his prior grievances against Henschel, and threatened to withhold Plaintiff's ID card. (See 2/20/11 Complaint, Am. Compl., Ex. 22; Quezada dep. at 26.)
• On an unidentified day in March 2011, Surber verbally harassed Plaintiff for filing complaints and grievances against officers under her command. (See Quezada dep. 35-37.)
• On April 28, 2011, Surber verbally harassed Plaintiff for filing his complaint regarding the missing legal documents. (Id.)
When asserting a retaliation claim, "An inmate has no right to redress simply because an officer made a hostile or derogatory comment about him." Roseboro v. Gillespie, 791 F. Supp. 2d 353, 373 (S.D.N.Y. 2011) (quotation marks, alteration, and citation omitted). "Allegations of threats or verbal harassment, without any injury or damage, do not state a claim under 42 U.S.C. § 1983." Ramirez v. Holmes, 921 F. Supp. 204, 210 (S.D.N.Y. 1996).
For example, I previously dismissed a prisoner's claims sua sponte on similar facts in Davidson v. Bartholome, 460 F. Supp. 2d 436 (S.D.N.Y. 2006). The plaintiff in that case:
testified that after explaining to Sergeant Augustine why plaintiff needed his medication, the sergeant became hostile and began cursing at him. Sergeant Augustine purportedly referred to an earlier lawsuit that plaintiff brought against a Downstate employee and told plaintiff that he was going to issue him a "false" misbehavior ticket. However, plaintiff states that Sergeant Augustine never followed through with any false report.Id. at 446. The plaintiff there argued that the sergeant's verbal harassment was enough to show retaliation, but the court held otherwise. "Plaintiff has no right to redress simply because the sergeant made a hostile or derogatory comment about him." Id. The plaintiff received a medication he sought, even after the sergeant's comments, so the verbal harassment could not have constituted adverse action.
Other courts in this circuit have reached similar conclusions about verbal harassment. See, e.g., Bartley v. Collins, 95-10161, 2006 WL 1289256, at *6 (S.D.N.Y. May 10, 2006); Alicea v. Howell, 387 F. Supp. 2d 227, 237 (W.D.N.Y. 2005). The line between de minimis verbal harassment and retaliatory adverse action seems to hinge on the specificity and seriousness of the words used; "The less direct and specific a threat, the less likely it will deter an inmate from exercising his First Amendment rights." Mateo v. Fischer, 682 F. Supp. 2d 423, 434 (S.D.N.Y. 2010).
Defendants argue that none of the verbal harassment in the five incidents described above rises to the level of adverse action applying the relevant standard.
That is, of course, a merits defense - or, more properly, a Twombly/Iqbal defense. It has absolutely nothing to do with qualified immunity.
Defendants contend that pretending Plaintiff had a call out from the law library and then calling him a "faggot" is not adverse action. "Non-specific verbal threats, harassing comments and hostile behavior do not constitute adverse actions sufficient to state a retaliation claim." Ross v. Westchester Cnty. Jail, 2012 WL 86467, at *7 (S.D.N.Y. Jan.11, 2012). Confronted with the very same derogatory comment made here, the court in Edwards v. Horn, 2012 WL 760172, at *15 (S.D.N.Y. Mar. 8, 2012), found it was insufficient to rise to the level of adverse action. The same court also described the prisoner "being told he had a visitor when he in fact did not" as de miminis and not actionable. See id. Defendants argue that these are not the sort of actions that deter a person of ordinary firmness.
Defendants also argue that Henschel's verbal harassment in October and December 2010 is insufficient to state a claim. Plaintiff claims that Henschel made several threatening comments during this time period:
To be completely frank, the State argues that the officers are "entitled to qualified immunity" because the statements are no more than de minimis and do not rise to the level of a constitutional violation. That is not correct. The officers are not entitled to qualified immunity from suit if statements are de minimis. They are entitled to dismissal on the merits if statements are de minimis. One might hope that lawyers in an office that repeatedly litigates the issue of qualified immunity would understand what it is, but this court has long since abandoned hope on that score. It is apparent, from the briefs filed in this case, that the Assistant Attorneys General on this case have no idea of the difference between qualified immunity and dismissal for failure to state a claim, or between qualified immunity and summary judgment on the merits.
• "Get the fuck away from my face. We all know who you are. You don't understand that we know who you are. So either get out of my face, or I'm going to have to break your fucking face before my retirement, you fucking asshole." (Am. Compl., ¶ 60.)
• "I am going to fuck you up very bad. You're making me lose my patience. Are you not going to move or am I going to break your fucking face?" (Id. at ¶ 61.)
• "You get on my nerves and I will do something to put you out of circulation." (Id. at ¶ 62.)
• "You're going to close your fucking mouth or I'm going to take you outside to the messhall. Then you'll know what's going to happen to you. If you don't want me to do something to you, stay the fuck away from me." (Id. at ¶ 63.)
Defendants argue that these are the sort of vague threats that would not deter someone of ordinary fitness from exercising his constitutional rights, noting, "Verbal abuse, vulgarity, and even threats are insufficient to rise to the level of constitutional violations." DeJesus v. Tierney, 2006 WL 839541, at *11 (N.D.N.Y. Mar. 28, 2006.).
Defendants further argue that Henschel's harassment and threats in January and February 2011 are not adverse actions. Plaintiff claims that Henschel defaced his ID card on several occasions in early 2011. He also says that one time Henschel refused to give Plaintiff his ID card back, and told Plaintiff, "I have the ID card and if you continue snitching, telling people and the Sergeant that I destroyed it, you'll never fucking receive the ID card and you're going to be in your cell for days or weeks." (Am. Compl., at ¶ 89.) Plaintiff admits that he later received a new ID card that same day. (Id.)
Just as the threat to file a misbehavior report without following through is not adverse action, see Davidson v. Bartholome, 460 F. Supp. 2d 436 (S.D.N.Y. 2006), neither is a threat that Plaintiff would lose his ID card for days or weeks when that does not come to fruition.
Finally, Defendants contend that Surber's verbal harassment in March and April 2011 is not adverse action. Plaintiff claims that in March 2011, Surber approached him "in a hostile manner" and said:
This is the person I want to see. Let me tell you something. Keep me out of your shit. You file too many complaints against my officers and then fucking lawsuits, you fucking bitch. That's for women. You're a fucking bitch. I don't need these
fucking officers to kick your ass. I can do it myself. Keep me out of your fucking shit. I don't want to see no more fucking against my officers, you fucking bitch.(Am. Compl, at ¶ 90.) The next month, Surber again yelled at Plaintiff and berated him for filing complaints against her and the officers she supervised. (Id. at ¶ 103.)
Besides the vague reference to kicking Plaintiff's ass, there is no threat in these statements. And it is well established that general threats and foul language do not constitute adverse actions. See Barrington v. N.Y., 806 F. Supp. 2d 730, 746 (S.D.N.Y. 2011).
All of these contentions must be dismissed - not because the officers who made the offensive statements and uttered the threats are qualifiedly immune from suit, but because their disgusting, offensive and highly unprofessional conduct does not rise to the level of a constitutional tort (which is to say, it is not sufficiently serious to deter a person of ordinary firmness from continuing to exercise his First Amendment rights). Therefore, the motion is granted to the extent it seeks dismissal of all the retaliation claims for verbal harassment against Macisaac, Cefaloni, Henshcel, and Surber that do not involve threats of serious violence.
I decline, however, to dismiss the claim against Henschel for allegedly threatening to kill Plaintiff in December 2010. A threat to kill someone for filing a grievance is sufficiently serious that it might well deter a person of ordinary firmness from exercising his First Amendment rights - particularly in view of the numerous reports of corrections officer misconduct that have been made public recently. While I recognize that one of my colleagues in another district recently dismissed a case where a corrections officer allegedly threatened to kill a prisoner, on the ground that the threat was too general, Barnes v. Cnty. of Monroe, 2015 WL 602860, at *35 (W.D.N.Y. 2015), I do not believe it appropriate to follow that non-binding precedent here - especially in view of what happened to Plaintiff only a few months thereafter. Besides, the Second Circuit has held that threats to seriously harm prisoners can be sufficiently serious in the context of repeated instances of harassment or retaliation. See Ford v. Palmer, 539 F. App'x 5, 7 (2d Cir. 2013).
2. Harassing Conduct
Plaintiff claims that Defendants engaged in a campaign of harassment in retaliation for having filed the Second Action and his continual filing of prison grievances. The episodes of harassing conduct he recounts can be grouped as follows: (a) denial of legal supplies/destruction of legal papers, (b) removal from the special diet plan, (c) defacement and confiscation of Plaintiff's ID card, (d) turning off the lights and water in Plaintiff's cell, and (e) failure to provide Plaintiff a razor.
Defendants have not moved for summary judgment on the retaliation claims predicated on these incidents of harassing conduct. Though Defendants discussed some of these as "Eighth Amendment harassment" claims - whatever that may be - they have not moved for summary judgment on these as retaliation claims.
3. The May 2011 Assault
Defendants do not move for summary judgment on claims against Defendants Macisaac, Filipponi, Corbin, Tokarz, Brothers, Alexander, Melville, and Rojas arising from their direct involvement in the May 2011 incident. Defendants fail to acknowledge that Plaintiff also asserts that Surber and the Mryzglods were involved in directing, planning, or covering up the May 2011 assault, and so Defendants have not moved for summary judgment on the claims against these defendants arising from the assault either.
E. Defendants are entitled to dismissal of Plaintiff's miscellaneous claims
Plaintiff asserts claims for (1) negligent hiring, training, retaining, and supervising, and (2) intentional infliction of emotional distress. These will be discussed below.
In addition to these claims, Defendants also characterize several other claims as "miscellaneous" - such as their biased investigation of Plaintiff's complaints and failure to transfer Plaintiff. The gravamen of Plaintiff's concern about those other incidents is that Defendants made no effort to protect him, despite notice of the harm he faced; he contends that Defendants demonstrated their indifference to his safety by not transferring him out of Green Haven or placing him in protective custody.
I understand these claims to be Eighth Amendment deliberate indifference claims, not "free-floating" miscellaneous claims. Because Defendants mischaracterized these claims as "miscellaneous" claims, it did not discuss them using the rubric of deliberate indifference claims. I do not understand Plaintiff to contend that he had a right to a transfer for personal convenience or for any other reason except his safety; it seems to me that Defendants misunderstand what Plaintiff is charging them with, which is being indifferent to his safety and well-being. That being so, the arguments they make do not clash with the claim as pleaded, and the motion for summary judgment on those claims is denied. Denial is without prejudice to a motion addressing the claims that Plaintiff pleaded.
1. Negligent Hiring, Training, Retaining, and Supervising
Defendants argue that they are entitled to summary judgment on Plaintiff's negligence claims because negligence claims are not cognizable under § 1983. That is correct. See Cruz v. New York, 24 F. Supp. 3d 299, 311 (W.D.N.Y. 2014). I therefore cannot understand why Defendants did not move to dismiss this claim for failure to state a claim - which is what they argue. Instead, they say once again that they are entitled to qualified immunity from suit on such a claim. They are not. A prison official is obviously not entitled to qualified immunity from a claim that does not exist!
However, it makes no sense to proceed on a claim that is dismissible on its face.
Even if I read the complaint to assert these claims under state law rather than § 1983, I would still be constrained to dismiss them. New York Correction Law § 24 shields Defendants from liability. Correction Law § 24 provides in relevant part:
No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, . . . in his or her personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.N.Y. Correct. Law § 24. Although § 24 only refers to actions in state court, the Second Circuit has held that applies to state claims brought in federal court. Baker v. Coughlin, 77 F.3d 12, 13-14 (2d Cir. 1996).
Defendants are thus entitled to dismissal of Plaintiff's negligence claims - though once again dismissal is not on the grounds of qualified immunity.
2. Intentional Infliction of Emotional Distress
Plaintiff asserts a claim for intentional infliction of emotional distress under § 1983, based primarily on the May 2011 assault.
The Defendants argue that there are no Second Circuit cases authorizing § 1983 claims for this cause of action, and "federal courts in other districts have dismissed § 1983 claims for intentional infliction of emotional distress because it is not a cognizable constitutional claim." Anderson v. City of New York, 2013 WL 6182675, at *3 (S.D.N.Y. Nov. 19, 2013).
Once again, Defendants assert that they are qualifiedly immune and then argue a merits-based defense - again, that the claim is not legally actionable. Once again, they are correct (or would be, if they had not cloaked their motion in the coat of qualified immunity). Because § 1983 is not the proper vehicle to bring an intentional infliction of emotional distress claim, the claim is dismissed.
As before, it would not save Plaintiff's claim if I deemed his complaint to plead a state law claim for intentional infliction of emotional distress. Corrections Law § 24 bars Plaintiff's pursuit of this claim under state law. Cf. Cruz, 24 F. Supp. 3d at 310.
CONCLUSION
For the foregoing reasons, the motion for summary judgment is granted in part and denied in part. The Clerk has already been directed to close this motion. Dated: October 13, 2015
/s/_________
U.S.D.J. BY ECF TO ALL COUNSEL