Summary
granting a motion to dismiss because the denial of food on two occasions is de minimis and not actionable
Summary of this case from Holmes v. GrantOpinion
03-CV-0902E.
August 31, 2004
DECISION and ORDER
INTRODUCTION
Plaintiff William Snyder, an inmate formerly incarcerated at the Southport Correctional Facility ("Southport"), brought this action pursuant to 42 U.S.C. § 1983 against a number of Southport correctional employees, including supervisory and non-supervisory personnel (collectively "the defendants"). Plaintiff's original complaint (Docket No. 1), was filed on December 1, 2003. By Order dated March 18, 2004, (Docket No. 4), the Court (Hon. Michael A. Telesca) granted plaintiff's request to proceed as a poor person, denied as premature his motion for appointment of counsel, and directed that plaintiff file an Amended Complaint specifying, as to each defendant, the actions or failures to act, and the time and locations of such actions or failures to act, constituting the underlying events which give rise to plaintiff's claims. The Order of March 18 further directed plaintiff to support his claims against prison officials with short, plain and concise factual allegations, and warned that plaintiff's failure to do so would result in the dismissal of this action. Plaintiff filed an Amended Complaint on April 12, 2004 (Docket No. 5). For the reasons set forth below, several of plaintiff's claims are now dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, and service by the U.S. Marshal is directed with respect to the remaining claims.
DISCUSSION
Section 1915(e)(2)(B) of 28 U.S.C. provides that the Court shall dismiss a case in which in forma pauperis status has been granted if the Court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. In addition, 28 U.S.C. § 1915A(a) requires the Court to conduct an initial screening of "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," id., regardless of whether or not the inmate has sought in forma pauperis status under 28 U.S.C. § 1915.
In evaluating the complaint, the Court must accept as true all factual allegations and must draw all inferences in plaintiff's favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). Dismissal is not appropriate "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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). Based on its evaluation of the amended complaint, the Court finds that several of plaintiff's claims must be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b) because they fail to state a claim upon which relief may be granted.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. "To state a valid claim under 42 U.S.C. §§ 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Whalen v. County of Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). In addition, a prerequisite for liability under § 1983 is "personal involvement" by the defendants in the alleged constitutional deprivation. Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998).
Plaintiff's Allegations
Plaintiff's amended complaint asserts a variety of claims against the thirteen named defendants. The specific claims against each defendant are initially set forth in four separately numbered (I-IV) and labeled Claims. (Am. Compl. pp. 2-10). Plaintiff subsequently restates the claims he is seeking to bring against each defendant in the "Relief" section of the Complaint. (Am. Compl. pp. 12-20). The "Claims" section of the amended complaint is repetitious, and contains overlapping allegations of injury and a veritable hodgepodge of omnibus allegations. The amended complaint also sets forth numerous conclusory charges and inferences that are supported by little more than plaintiff's "post hoc, ergo propter hoc" assertions. The "Relief" section of the amended complaint, by contrast, more nearly conforms to the Court's directive in its previous Order that the amended complaint must set forth, in "short, plain and concise terms" the particular claims that plaintiff wishes to assert against each of the defendants. While drawing upon both sections of the amended complaint, the Court has treated the "Relief" section of the complaint as setting forth the exhaustive enumeration of the plaintiffs' claims against each defendant.
The Court's review of the amended complaint is further complicated by the fact that plaintiff also invokes most of his specific claims against the defendants in support of separate claims that defendants' actions in depriving him of his rights were motivated by a desire to retaliate against him for having filed complaints and grievances against prison authorities. Plaintiff alleges that defendants retaliated against him in a wide variety of ways, e.g. by filing false charges against him; by having placed him in proximity to inmates known to be hostile to him and by "using plaintiff's known enemies against him;" by having physically assaulted him; by denying him food and showers; by telling other inmates that plaintiff was a "snitch" and that he had sexually assaulted a minor. Each category of plaintiff's retaliation claims is addressed separately below.
Following its review of the amended complaint, the Court is able to segregate the plaintiff's claims into the following general categories: (1) that corrections officers filed false misbehavior reports against plaintiff, resulting in his having been improperly found guilty and punished for an offense he did not commit; (2) that plaintiff was denied due process at a hearing held on one of the false misbehavior charges brought against him; (3) that corrections officers failed to protect plaintiff from physical and mental harm and abuse by other inmates who were known to be hostile to the plaintiff, despite the fact that plaintiff had informed the officers of their hostility toward him; (4) that on two occasions plaintiff was the victim of assault and the use of excessive force by corrections officers; (5) that plaintiff was denied medical attention for the injuries sustained in those assaults; (6) that plaintiff was the subject of numerous acts of retaliation by prison employees and officials in response to the grievances and complaints he filed with prison officials.
The Court will evaluate each of the categories of claims set forth in the complaint separately.
1. False Misbehavior Reports
Plaintiff claims that on January 10, 2002 Sgt. Osbourn, acting at the behest of Superintendent McGinnis, and in retaliation for a complaint and grievance that plaintiff had filed concerning another inmate, filed a false misbehavior report against him, thereby violating his First Amendment rights. (Am. Compl. pp. 3, 4, 12). While it is well-settled that "a prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report," Boddie v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997), an allegation that a prison official filed a false disciplinary charge "in retaliation for the exercise of a constitutionally protected right, such as the filing of a grievance" does state a claim under § 1983. Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002). Given that plaintiff asserts that the false misbehavior report was filed against him in retaliation for exercising his right to file a grievance, and that the filing of the report occurred just five to ten days after he had filed his complaint and grievance, the Court will permit plaintiff's false misbehavior report claim against McGiness and Osbourn to proceed.
Plaintiff alleges that C.O. Collins also filed a false misbehavior report against plaintiff on April 1, 2002. He alleges that Collins did so to "cover up" for an assault Collins and C.O. Bristol perpetrated on plaintiff on the same date. (Am. Compl. pp. 7, 16). Plaintiff's linkage of this alleged false behavior report to the assault which allegedly preceded it is sufficient to allow this claim to proceed against C.O. Collins.
2. Denial of Due Process
Plaintiff alleges a Fourteenth Amendment denial of due process claim against defendant Lt. Donahue, claiming that Donahue sustained a misbehavior charge against plaintiff at a disciplinary hearing contrary to the evidence and after refusing to allow plaintiff to prove that the charge on which he was being tried was the product of retaliation by Sgt. Osbourn and Superintendent McGinnis ( see supra p. 5). After finding plaintiff guilty, Donahue sentenced him to one-month in the Special Housing Unit ("SHU"). (Am. Compl. pp. 4, 12, 13).
A prisoner asserting a claim for denial of due process at a disciplinary hearing "must first `identify a liberty interest protected by the Due Process Clause of which he was deprived.'" Walker v. Goord, No. 98-C5217, 2000 U.S. Dist. LEXIS 3501, at *21, (S.D.N.Y. Mar. 22, 2000) (quoting Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999)). Second, he must demonstrate that "the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from . . . confinement or restraint." Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996). If a plaintiff meets these two requirements, he must then show that the deprivation of the liberty interest he suffered occurred without due process of law. See Taylor v. Rodriguez, 238 F.3d 188, 191-92 (2d Cir. 2001).
Confinement to SHU does not automatically implicate a liberty interest, and while there is no firm "bright-line" rule prescribing the length of SHU confinement that would constitute an "atypical and significant hardship," decisions in this Circuit "generally require that the duration of SHU confinement be at least 100 days" to be so categorized. Palmer v. Goss, No. 02-C5804, 2003 U.S. Dist. LEXIS 18103 at *19 (S.D.N.Y. Oct. 9, 2003) ( cases cited therein), aff'd. sub. nom. Palmer v. Richards, 264 F. 3d 60 (2d Cir. 2004); Durran v. Selsky, 251 F. Supp. 2d 1208, 1214 (W.D.N.Y. 2003), quoting Tookes v. Artuz, No. 00-C4969, 2002 U.S. Dist. LEXIS 12540. at *3 (S.D.N.Y. July 11, 2002) ("[C]ourts in this Circuit routinely hold that an inmate's confinement in special housing for 101 days or less, absent additional egregious circumstances, does not implicate a liberty interest."). Cf. Prince v. Edwards, No. 99-C8650, 2000 U.S. Dist. LEXIS 6608, at *17 (S.D.N.Y. May 17, 2000) (suggesting that any period of segregation period of one year or less affords no protected liberty interest).
Plaintiff alleges that he was sentenced to one month confinement in SHU by Lt. Donahue following the hearing on the misconduct charge. (Am. Compl. p. 4). This is not sufficient to constitute an "atypical or significant hardship" as defined by the relevant cases in this Circuit, and thus his procedural due process claim against Lt. Donahue will be dismissed.
3. Failure to Protect
Plaintiff's alleges that several of the defendants — Superintendent McGinnis, Captain Wilcox, Lt. Hazelten, I.G.R.C. Rep. Ciancio, and Psychologist B. Vertoske — failed to protect him from the violent or hostile actions of several of his fellow inmates, as a result of which he suffered physical and emotional injuries. (Am. Compl. pp. 3, 5-6, 12, 14). He also asserts that they failed to protect him from himself (Am. Compl. p. 14), a reference to plaintiff's claims that he had told prison officials that he would attempt to commit suicide if he were placed with or near inmates who he claimed had abused him in the past. Plaintiff further claims that the defendants' refusal to heed his warning resulted in repeated attempts to kill himself (Am. Compl. pp. 5, 6, 11, 14).
The Eighth Amendment imposes a duty on prison officials "to take reasonable measures to guarantee the safety of inmates in their custody." Hayes v. New York City Dep't. of Corrections, 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825, 832-33 (1970). However, while prison officials are obligated to "protect prisoners from violence at the hands of other prisoners," this obligation is not absolute: "[not] every injury suffered by one prisoner at the hands of another translates into constitutional liability for prison officials responsible for the victim's safety." Farmer, 511 U.S. at 833. Instead, a prison official is responsible under the Eighth Amendment:
to take reasonable measures to guarantee the safety of inmates in their custody. . . . Moreover, under 42 U.S.C. § 1983, prison officials are liable for harm incurred by an inmate if the officials acted with "deliberate indifference" to the safety of the inmate. Morales v. New York State Dept. of Corrections, 842 F.2d 27, 30 (2d Cir. 1988). However, to state a cognizable section 1983 claim, the prisoner must allege actions or omissions sufficient to demonstrate deliberate indifference; mere negligence will not suffice.
The test for deliberate indifference is twofold. First, the plaintiff must demonstrate that he is incarcerated under conditions posing a substantial risk of serious harm. Second, the plaintiff must demonstrate that the defendant prison officials possessed sufficient culpable intent. . . . The second prong of the deliberate indifference test, culpable intent, in turn, involves a two-tier inquiry. Specifically, a prison official has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm.Hayes v. New York City Department of Corrections, 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825 (1994)) (emphasis added). While prison officials have a duty to protect prisoners from violent attacks by other inmates, see Farmer, 84 F.3d at 832-833, courts in this Circuit have repeatedly emphasized that "the standard for prisoner `failure to protect' claims brought under 42 U.S.C. § 1983 is quite high." Baines v. New York, No. 01-C2645, 2004 U.S. Dist. LEXIS 1461, at *18 (S.D.N.Y. Feb. 5, 2004) (quoting Rivera v. New York, No. 96-C7697, 1999 U.S. Dist. LEXIS 129, at *22 (S.D.N.Y. Jan. 6, 1999).
Plaintiff's amended complaint asserts three separate failure to protect claims, each having to do with a different inmate that plaintiff alleges was known by prison authorities to be hostile to him. Plaintiff's first failure to protect claim concerns inmate Lawrence, and alleges that plaintiff had filed a complaint with Superintendent McGinnis and a grievance with IGRC Rep. Ciancio explaining that Lawrence, a member of a prison gang, had threatened to cut him; he alleges that his complaints were disregarded and that Lawrence then made good on his threat. (Am. Compl. p. 3). The Court finds that plaintiff's allegations in support of his failure to protect claim against Superintendent McGinnis and IGRC Rep. Ciancio are sufficient to allow his claim against them for failing to protect him from inmate Lawrence to proceed.
Plaintiff's second failure to protect claim asserts that Psychologist B. Vertoske, Captain W. Wilcox, and Lt. Hazelten had been warned by plaintiff that he would attempt to commit suicide if he were "forced to go back next to Inmate Jackson." (Am. Compl. P. 5). According to plaintiff, these three defendants ignored his complaint and by placing him near Jackson, or allowing him to placed near Jackson, they caused him to attempt suicide. However, the only harm from forced proximity with inmate Jackson that plaintiff indicated he would or did suffer was lack of sleep and psychological abuse. (Am. Compl. pp. 5, 11). Assuming the truth of what plaintiff alleges he communicated to Vertoske, Wilcox and Hazelten about Jackson, his complaint fails to demonstrate that he had put them on notice that proximity to inmate Jackson would create a "substantial risk of serious harm," and thus is not sufficient to support his failure to protect claim against them. See Lyncee v. Jenks, No. 98-C3638, 2000 U.S. Dist. LEXIS 4101, at *7-8 (S.D.N.Y. March 31, 2000) ("Plaintiff indicated to . . . the defendants that he did not `get along' with his alleged assailant. Considering plaintiff was housed in a maximum security federal penitentiary, the mere claim that plaintiff did not get along with his cellmate could not possibly put the defendants on notice of a substantial risk to plaintiff, as most inmates presumably would rather not share tight quarters with a felon."). Accordingly, plaintiff's claim that defendants Vertoske, Wilcox, and Hazelten failed to protect him from inmate Jackson must be dismissed.
The Court takes a similar view of plaintiff's failure to protect claim against Superintendent McGinnis, Captain Wilcox, and IGRC Rep. Ciancio, which alleges that Wilcox moved inmate Struba next door to him even though Wilcox knew that Struba was "an enemy" of plaintiff and had a history of bad and disruptive conduct toward plaintiff. McGinnis and Ciancio are alleged to have been aware of this situation. (Am Compl. pp. 5-6). Plaintiff's allegations do not come close to satisfying the deliberate indifference standard, and his claim that Superintendent McGinnis, Captain Wilcox and I.G.R.C. Rep. Ciancio failed to protect him from inmate Struba is likewise dismissed.
4. Excessive Force and Assault
The amended complaint alleges Eighth Amendment excessive force claims against defendant C.O.s Collins and Shelly for having assaulted plaintiff and used excessive force on him on February 22, 2002 and against C.O.s Collins and Bristol for having assaulted him on April 1, 2002. (Am. Compl. pp. 6, 7, 15, 16). The allegations of excessive force set forth in the amended complaint, in terms of the time and severity of the alleged assaults, and the resulting injuries, are sufficient to state an excessive force claim, see Hudson v. McMillian, 503 U.S. 1 (1992); Romano v. Howarth, 998 F.2d 101 (2d Cir. 1993), and will be allowed to proceed.
5. Denial of Medical Attention/Deliberate Indifference
Plaintiff's claim that he was denied appropriate medical attention in violation of the Eighth Amendment stems from the assault he alleges that he suffered at the hands of C.O. Collins and C.O. Shelly on February 22, 2002. He alleges that after that assault he asked Cutler, Collins, and Kamas for medical assistance, but his request was ignored. (Am. Compl. pp. 7, 9, 15).
To sustain a claim of improper medical treatment, a plaintiff must allege facts that, if proven true, would demonstrate that prison officials were deliberately indifferent to his condition. In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court ruled that the "deliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." Under Estelle, to establish a claim for "deliberate indifference," a plaintiff must allege that (1) he suffers from severe pain warranting prompt medical attention; (2) he made multiple complaints of pain; and (3) prison officials withheld treatment for the purpose of causing plaintiff to suffer. Lumaj v. Williams, No. 03-C1849, 2004 U.S. Dist. LEXIS 8178, at *9-10 (S.D.N.Y. May 7, 2004).
The allegations in plaintiff's amended complaint that defendants C.O.s Cutler, Collins and Kamas ignored his request for medical assistance following the altercation between plaintiff and C.O.s Collins, Shelly and Bristol on February 22, 2002 are sufficient to allow his claim of deliberate indifference to his medical needs to go forward.
6. Retaliation
The amended complaint asserts retaliation claims against a number of the defendants. Plaintiff alleges that in retaliation for his filing grievances and complaints the following things were done to him by prison officials and employees: (a) Superintendent McGinnis, Sgt. Osbourn and I.G.R.C. Rep. Ciancio conspired to issue a false misbehavior report against him; (b) Lt. Donahue found plaintiff guilty at a hearing of self-mutilation contrary to the evidence and improperly sentenced him one month in SHU; (c) Superintendent McGinnis, Captain Wilcox, Lt. Hazelten and I.G.R.C. Rep. Ciancio placed plaintiff with, or in close proximity to, inmates that they knew to be hostile to him, knowing that this would result in his attempting to commit suicide; (d) Superintendent McGinnis, Captain Wilcox and Psychologist B. Vertoske put plaintiff in a suicide observation room that they knew had an extremely low temperature; (e) Sgt. Cutler, and C.O.s Collins, Bristol and Shelley assaulted plaintiff and Sgt. Cutler, C.O. Collins and C.O. Kamas then denied him medical treatment for his ensuing injuries; (f) C.O.s Collins, Shelley, Kamas and Bristol denied plaintiff food and showers; (g) C.O.Collins falsely informed other inmates that plaintiff was a "snitch" and had been imprisoned for sodomizing a minor; (h) prison officials and employees refused to process or ignored several of the grievances which plaintiff had filed or which he had attempted to file. In addition to the foregoing retaliation claims, each of which is separately addressed below, plaintiff's amended complaint conclusorily asserts a number of additional retaliation claims, which are assessed collectively by the Court as (i) "miscellaneous" retaliation claims.
It is well established that prison officials may not retaliate against inmates for exercising their constitutional rights. See, e.g., Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). To state a retaliation claim under § 1983, "a plaintiff must show that: (1) his actions were protected by the Constitution or federal law; and (2) the defendant's conduct complained of was in response to that protected activity." Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000) (internal quotation and citation omitted). As to the second prong, a prisoner alleging retaliation must show that the protected conduct was "a substantial or motivating factor" behind the alleged retaliatory conduct. See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Evidence that can lead to an inference of improper motive includes: (1) the temporal proximity of the filing of a grievance and the alleged retaliatory act; (2) the inmate's prior good disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant regarding his motive for disciplining plaintiff. See Colon, 58 F.3d at 872-73.
Because claims of retaliation are easily fabricated, the courts must "examine prisoners' claims of retaliation with skepticism and particular care," Colon, 58 F.3d at 872, requiring "`detailed fact pleading . . . to withstand a motion to dismiss.'" Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) (quoting Angola v. Civiletti, 666 F.2d 1, 4 (2d Cir. 1981)). To survive a motion to dismiss, such claims must be "`supported by specific and detailed factual allegations,'" and should not be stated "`in wholly conclusory terms.'" Friedl, 210 F.3d at 85-86 (quoting Flaherty, 713 F.2d at 13); see also Graham, 89 F.3d at 79 (wholly conclusory claims of retaliation "can be dismissed on the pleadings alone"); Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (same).
Moreover, only those retaliatory acts that are likely to "chill a person of ordinary firmness from continuing to engage" in activity protected by the First Amendment are actionable under § 1983; in other words, allegations of de minimis acts of retaliation do not state a claim under § 1983. Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir. 1999) (cited with approval in Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)). See Davidson v. Chestnut, 193 F.3d 144, 150 (2d Cir. 1999) (on remand, district court to consider the "serious question" of "whether the alleged acts of retaliation . . . were more than de minimis" in deciding summary judgment motion). A de minimis retaliatory act is outside the ambit of constitutional protection. Dawes, 239 F.3d at 492.
In its prior Order granting plaintiff leave to replead his complaint, the Court determined that his initial complaint did not allege the necessary elements of a retaliation claim, and plaintiff was directed to set forth in his amended complaint the following allegations of fact: (1) each and every act plaintiff claims was taken in retaliation for his grievances, (2) the date of each act, and (3) which defendants engaged in each act that plaintiff claims was done in retaliation for his grievances. In addition, the Court reminded that conclusory allegations of retaliation would not suffice, and that he would be required to support his claims of retaliation with specific and detailed factual allegations. (Order of March 18, 2004 p. 12).
The Court finds that the plaintiff's amended complaint is frequently wanting in terms of specific allegations supporting his assertions that virtually everything that was done — or not done — to him by prison authorities terms was in retaliation for a grievances or complaints he had filed. The Court's ability to identify and segregate each of plaintiff's claims of retaliation has been greatly impeded by the fact that they are not confined to Claim IV of the amended complaint, which plaintiff captioned "Retaliation," but are to be found in other sections of his complaint as well. Some retaliation claims are asserted more than once. Moreover, while plaintiff construes most of the things that were allegedly wrongly done to him by prison authorities as acts of retaliation, he frequently provides no factual basis to support such claims. Therefore, in reviewing plaintiff's claims of retaliation, the Court has attempted to segregate and consider separately those claims that are supported by something more than conclusory assertions by the plaintiff (see Retaliation claims (a) — (h) below). The remainder of plaintiff's retaliation claims are considered and disposed of collectively in Retaliation claim (i) ("Miscellaneous Retaliation Claims") below.
a. False misbehavior reports retaliation claims
The amended complaint asserts that in retaliation for plaintiff's complaint that another inmate had threatened to injure him, Superintendent McGinnis "directed" Sgt. Osbourn to file a misbehavior report charging plaintiff with having inflicted on himself a cut that plaintiff alleges had been made by the inmate he had previously complained about. Plaintiff alleges that Sgt. Osbourn then charged him with "self-mutilation," that charge having been filed five days after plaintiff had complained that the defendants' deliberate indifference to his previous complaint about his fellow inmate's threat had led to his being cut. (Am. Compl. pp. 3, 4, 12). While plaintiff asserts that at the hearing convened to hear the charge against him, he had "attempted to prove" that Osbourn had been directed to "write the ticket" by Superintendent McGinnis, he gives no indication of what proof of this claim he attempted to introduce (other than to state that Lt. Donahue "wouldn't let Sgt. Osbourn answer the questions" he wanted to ask him), nor does his amended complaint contain any factual allegations that would support this conclusory charge. On its face, plaintiff's assertion that Superintendent McGinnis "directed" Sgt. Osbourn to file a false complaint is precisely the type of retaliation claim that should be "examine[d] with skepticism and particular care," Colon, 58 F.3d at 872, since it would seem rather unlikely that plaintiff would have been privy to any communication in which such a directive would have been issued.
The plaintiff's claim that the misbehavior report filed by Sgt. Osbourn was the product of retaliatory collusion between Osbourn and Superintendent McGinnis finds some support in the temporal proximity between the plaintiff's filing of his complaint with McGinnis and his grievance with I.G.R.C. Rep. Ciancio on January 5, 2002, and the issuance of a "ticket" against him by Sgt. Osbourn five days later. (Am. Compl. pp. 3, 4). The Court finds that plaintiff's allegation of temporal proximity between his complaint and the filing of the disciplinary charge against him is sufficient, at this stage, to allow his otherwise conclusory claim of retaliation against Superintendent McGiniss and Sgt. Osbourn to proceed. See Colon, 58 F.3d at 872 ("[W]e have held that . . . temporal proximity between an inmate's lawsuit and disciplinary action may serve as circumstantial evidence of retaliation."); Walker v. Goord, No. 98-C5217, 2000 U.S. Dist. LEXIS 350, at *15 (S.D.N.Y. Mar. 21, 2000).
b. Due Process retaliation claim
As noted above ( see supra pp. 5-7), plaintiff's amended complaint claims that Lt. Donahue violated plaintiff's due process rights when he found plaintiff guilty of the disciplinary charge filed against him by Sgt. Osbourn, a charge that plaintiff alleges Lt. Donahue knew plaintiff wasn't guilty of. Plaintiff also alleges, as a separate claim, that Lt. Donahue's actions in this regard were in retaliation for the complaints he had filed (Am. Compl. pp. 9, 12-13). Given the Court's dismissal of plaintiff's due process claim against Lt. Donahue for its failure to assert an "atypical and significant hardship," the Court will also dismiss the retaliation claim predicated upon the alleged denial by Lt. Osbourn of plaintiff's due process rights.
c. Exposing plaintiff to hostile inmates/using hostile inmates against plaintiff retaliation claims
As discussed above ( see supra pp. 7-10)), plaintiff claims that several of the defendants failed to protect him from the violent or hostile behavior of three of his fellow inmates. Plaintiff also asserts that defendants' alleged failure to protect was motivated by their desire to retaliate against him, and consistent with that claim, he alleges not only that Superintendent McGinnis, Psychologist Vertoske, Captain Wilcox, Lt. Hazelten and I.G.R.C. Rep. Ciancio exposed him to his fellow inmates' hostility (Am. Compl. p. 5), but that they affirmatively "used" plaintiff's "known enemies" against him to retaliate against him for his complaints and grievances. (Am. Compl. pp. 8, 9, 14). These two allegations obviously overlap, and the Court will address them together.
The amended complaint sets forth very little by way of factual allegations that would support plaintiff's claim that the defendants deliberately placed him in proximity to individuals who they knew were hostile to him, and did so with the intention of "using" those individuals to harm or harass him. For the most part, the assertions set forth in the complaint in support of this claim of retaliation are simply conclusory. Thus, plaintiff alleges that, though forewarned by Psychologist B. Vertoske that plaintiff would attempt suicide if brought into proximity with inmate Jackson, Lt. Hazelten and Captain Wilcox forced plaintiff "to go back next to" Jackson "in retaliation for [plaintiff's] complaints, and then deliberately failed to protect him." (Am. Compl. p. 5). While plaintiff does allege that he had told Vertoske that he would attempt to commit suicide if placed in proximity to inmate Jackson, the amended complaint gives no indication of how plaintiff came to learn that Vertoske had "forewarned" Hazelten and Wilcox of inmate Jackson's hostility toward him.
Similarly conclusory is plaintiff's allegation that defendant Captain Wilcox purposely moved inmate Struba next door to him, though he knew Struba was his enemy, and would bang on the wall to prevent plaintiff from sleeping or would throw feces at him. Plaintiff asserts that "this was done in retaliation of my complaints" (Am. Compl. p. 5) without alleging any facts that would support this assertion.
In its prior Order directing plaintiff to file an amended complaint, the Court reminded plaintiff that conclusory allegations of retaliation would not be sufficient to survive screening under 28 U.S.C. § 1915, and plaintiff was directed to "support his claims of retaliation with specific and detailed factual allegations." (Order of March 18, 2004 p. 12). The allegations set forth in the amended complaint do not satisfy this standard with respect to plaintiff's claim that Superintendent McGinnis, Psychologist B. Vertoske, I.G.R.C. Rep. Ciancio, Captain Wilcox and Lt. Hazelten used inmates Jackson and Struba against him as a form of retaliation.
The Court would also note that plaintiff's claims of retaliation against defendants for placing him near hostile inmates Jackson and Struba are also deficient in that they fails to allege that he suffered injuries sufficiently serious to state a claim under the Eighth Amendment. The only injuries that plaintiff alleges he was likely to suffer or did suffer as a result of being placed into proximity to inmates Jackson and Struba was disruption of his sleep, "psychological abuse," and the risk (which he does not allege ever came to fruition) that feces would be thrown in his direction. (Am. Compl. 5, 11). Plaintiff's allegations of injury do not rise to the level necessary to sustain an Eighth Amendment claim. See Cruz v. Hillman, No. 01-C4169, 2002 U.S. Dist. LEXIS 17705, at *26, 27 (S.D.N.Y. May 16, 2002) ( cases cited therein).
The Court will, however, allow plaintiff's failure to protect retaliation claim against defendants Superintendent McGinnis and I.G.R.C. Rep. Ciancio to proceed to the extent that it is based on his allegation that they failed to protect him from inmate Lawrence even after plaintiff had notified them of a specific threat of bodily harm from Lawrence. Plaintiff alleges that their failure to respond to his request that they protect him from Lawrence led to his being attacked by him. (Am. Compl. pp. 3, 12). Consistent with the Court's disposition of plaintiff's failure to protect claim against these defendants ( see supra p. 9), the Court finds that plaintiff's allegations against defendants McGinnis and Ciancio are minimally sufficient to allow his retaliation/failure to protect claim against them to proceed.
d. Exposure to inhumane temperature retaliation claim
Plaintiff alleges that defendants Superintendent McGinnis, Captain Wilcox and Psychologist Vertoske "deliberately" placed plaintiff in an extremely cold suicide observation room for two days as a result of which he suffered physical injuries (i.e. numbness leading to sickness) and emotional injuries in violation of the Eighth Amendment. (Am. Compl. pp. 6, 11, 14). He further alleges that although these defendants, as well as I.G.R.C. Rep. Ciancio had prior knowledge of the "inhumane" conditions of the observation room, they failed to remedy the problem. (Am. Compl. 6). While it is questionable whether the plaintiff's alleged two day exposure to intense cold in the suicide observation room was sufficiently severe to rise to the level of an Eighth Amendment violation (cf. McMillian v. Cortland, No. 99-C0057, 1999 U.S. App. LEXIS 22953 (2d Cir. 1999) and Corselli v. Coughlin, 842 F.2d 23 (2d cir. 1988)), the Court finds that this claim is fatally deficient because it does not allege facts that would "give rise to a colorable suspicion of retaliation" on the part of defendants McGinnis, Wilcox, and Vertoske when they placed him in the unheated room. Flaherty, 713 F.2d at 13.
e. Assault retaliation claims
The amended complaint asserts that the assaults plaintiff alleges he sustained at the hands of C.O.s Collins, Shelly and Bristol ( see supra pp. 10-11, "Excessive Force and Assault") were done in retaliation for complaints he had filed with prison authorities. (Am. Compl. pp. 6, 7, 15, 16). Consistent with the Court's determination that plaintiff's allegations of assault/use of excessive force were sufficiently detailed to allow that claim to proceed, the Court also finds that plaintiff's claims, relying on the same factual allegations, that he was assaulted in retaliation for grievances he had filed, may likewise proceed against Collins, Shelly and Bristol.
The assaults that plaintiff claims he received are described in detail on pp. 6 and 7 of his amended complaint, wherein plaintiff identifies C.O.s Collins, Shelly (and arguably Bristol) as having been the perpetrators. In summarizing his claims for relief later in the amended complaint, plaintiff includes Sgt. Cutler among those who assaulted him (Amend. Compl. p. 15), but inasmuch as there is nothing in plaintiff's detailed description of the assaults he sustained to indicate that Sgt. Cutler took part in an assault, the Court will not treat Sgt. Cutler as a defendant to plaintiff's retaliation/assault claim.
By a parity of logic, the Court will also permit plaintiff's claim that C.O.s Cutler and Collins further retaliated against him by denying him medical treatment for injuries allegedly sustained during the February 22, 2002 assault (Am. Compl. p. 9) to proceed.
f. Denial of food and showers retaliation claims
The amended complaint asserts that plaintiff was denied food on February 22, 2002 and April 2, 2002 in retaliation for various complaints he had filed with prison authorities. (Am. Compl. pp. 7, 9, 16). Plaintiff asserts a similar claim that he was denied showering privileges. (Am. Compl. pp. 7, 9, 10). The amended complaint is almost entirely conclusory in nature on this claim of retaliation, containing no specifics with respect to the extent of the deprivation (e.g. was plaintiff deprived of one meal or all meals for the day?), and pleads nothing other than plaintiff's assertion to support the inference that he was denied food and showers in retaliation for his grievances. But even if the Court were to assume that the denial of food to the plaintiff on two occasions constituted acts of retaliation, the Court finds that the actions complained of were de minimis and not actionable; such actions, even if proven at trial, would not chill a person of ordinary firmness from continuing to engage in First Amendment activity. See Rivera v. Goord, 119 F. Supp. 2d 327, 340-41 (S.D.N.Y. 2000); Nelson v. Michalko, 35 F. Supp. 2d 289, 295 (W.D.N.Y. 1999). The complaint is similarly conclusory and lacking in detail with respect to plaintiff's claim that he was denied showers.
Accordingly, the Court dismisses plaintiff's denial of food and showers claims against Captain Wilcox, C.O. Bristol, C.O. Kamas, and C.O. Shelly.
g. Labelling plaintiff a "snitch" and child molester retaliation claim.
The amended complaint alleges that defendant C.O. Collins retaliated against plaintiff and put his life in danger by informing other inmates that plaintiff was a "snitch," and that he was in prison because he had molested a 16 year old boy. (Am. Compl pp. 10, 16). Decisions in this Circuit have recognized that an inmate may incur the risk of physical harm at the hands of other inmates if he is labeled a "snitch," see e.g. Lawrence v. Goord, No. 98-C5529, 2000 U.S. Dist. LEXIS 14035, at *9 (E.D.N.Y. Sept. 19, 2000); Watson v. McGinnis, 964 F. Supp. 127, 131 (S.D.N.Y. 1997), and that a guard's intentionally calling a prisoner a snitch therefore may state an Eighth Amendment excessive force claim. Watson, 964 F. Supp. at 132. However, plaintiff does not allege that he was physically harmed by fellow inmates as a result of Collins' alleged labeling of him as a snitch and child molester, but instead asserts that he sustained "emotional injuries" due to what Collins said (Am. Compl. p. 16). Prisoners are not entitled under § 1983 to sue for mental or emotional harm unrelated to physical injury, ( see § 42 U.S.C. § 1997e(e)), and therefore, given the facts as alleged, plaintiff's claim against Collins premised on Collins calling him a snitch and child molester must be dismissed.
h. Refusal to process grievances/disregard of grievances retaliation claim
The amended complaint alleges that another component of the retaliatory measures taken against plaintiff because of his complaints consisted of I.G.R.C. Ciancio's refusal to process all of the grievances plaintiff submitted between December 27, 2001 and April 8, 2002. (Am. Compl. pp. 7-8, 10). Plaintiff further asserts at various other places in the amended complaint that several prison officials (Superintendent McGinnis, Captain Wilcox) knew of, but disregarded, various complaints that he had filed with respect to the conditions of his confinement (Am. Compl. pp. 5, 7-8). Plaintiff's allegations that prison officials refused to process or ignored his grievances and complaints must be dismissed because they fail to state a claim under § 1983: "When an inmate sets forth a constitutional claim in a grievance to prison officials and that grievance is ignored, the inmate has the right to directly petition the government for a redress of that claim. Therefore, the refusal to process an inmate's grievance . . . does not create a claim under § 1983." Cancel v. Goord, No. 00-C2042, 2001 U.S. Dist. LEXIS 3440 at *9-10 (S.D.N.Y. Mar. 29, 2001).
i. Miscellaneous retaliation claims.
In addition to the specific retaliation claims discussed above, Claim IV of plaintiff's amended complaint, which he captions "Retaliation" (Am. Compl. pp. 8-10) contains a veritable "grab-bag" of additional retaliation claims against a number of the defendants. What plaintiff basically does is either to take many of the specific claims set forth elsewhere in his amended complaint (e.g. assault, denial of food and showers, denial of medical treatment), and recast them as acts of retaliation, or to make additional conclusory and multifaceted allegations of retaliatory conduct. There is in all of this an "everything but the kitchen sink" quality to the plaintiff's allegations. Thus, for instance, plaintiff asserts with respect to defendant Captain Wilcox that Wilcox "used the plaintiff's known enemies against him; allowed his staff to lie; assault; not feed; deny showers and other violations against the plaintiff because of his complaints." (Am. Compl. pp. 8-9). Similar conclusory and unsupported claims of retaliation are set forth in other sections of the amended complaint as well. (Am. Compl. pp. 4, 7)
Claims of this nature do not satisfy the pleading requirements for claims of retaliation set forth in this Court's previous Order which require that such claims be supported by "specific and detailed" (as opposed to conclusory) factual allegations. (Order of March 18, 2004, p. 12). The Court therefore finds that the additional, "miscellaneous" claims of retaliation set forth in Claim IV (pp. 8-10) and elsewhere (pp. 4, 7) of the amended complaint against the following defendants — Captain Wilcox, Lt. Hazelten, Lt. Strong Sgt. Cutler, C.O. Collins, C.O. Kamas, and I.G.R.C. Rep. Ciancio — are conclusory and/or de minimis in nature, are not supported by specific factual allegations, and must therefore be dismissed.
The "miscellaneous" claims of retaliation set forth in Claim IV of plaintiff's amended complaint that the Court is dismissing with respect to the defendants named above do not, of course, include those claims of retaliation against particular defendants that are set forth in Claim IV and which the Court has considered under "6. Retaliation," (a) — (h) ( see supra pp. 12-23).
CONCLUSION
In accordance with the foregoing, the Court determines that:All claims against defendants Captain Wilcox, Lt. Donahue, Lt. Hazelten, Lt. Strong, and Psychologist B. Vertoske are dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A
Plaintiff's false misbehavior reports claims survive as to defendants Superintendent McGinnis, Sgt. Osbourn, and C.O. Collins.
Plaintiff's failure to protect claim survives as to defendants Superintendent McGinnis and IG.R.C. Rep Ciancio, solely to the extent that plaintiff's claim alleges that they failed to protect him from inmate Lawrence.
Plaintiff's excessive force and assault claims survive as to defendants C.O. Collins, C.O. Shelly, and C.O. Bristol.
Plaintiff's deliberate indifference to medical needs claims survive as to defendants C.O. Cutler, C.O. Collins, and C.O.Kamas.
Plaintiff's retaliation/filing false misbehavior reports claims survive as to Superintendent McGiniss and Sgt. Osbourn.
Plaintiff's retaliation/exposing plaintiff to hostile inmates claim survives as to Superintendent McGinnis and I.G.R.C. Rep. Ciancio only to the extent that plaintiff alleges that they failed to protect him from inmate Lawrence.
Plaintiff's retaliation/assault claims survive as to C.O. Collins, C.O. Shelly, and C.O. Bristol.
Plaintiff's retaliation/deliberate indifference to medical needs claim survives as to C.O. Cutler and C.O. Collins.
All claims against Superintendent M. McGinnis, Sgt. Cutler, Sgt. Osbourn, C.O. Bristol, C.O. Collins, C.O. Shelly, C.O. Kamas, and I.G.R.C. Rep. Ciancio, other than the claims addressed above, are dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A.
The U.S. Marshal is directed to serve the summons, amended complaint and this Order on defendants Superintendent M. McGinnis, Sgt. Cutler, Sgt. Osbourn, C.O. Bristol, C.O. Collins, C.O. Shelly, C.O. Kamas and I.G.R.C. Rep. Ciancio regarding the claims against those defendants which survive, as enumerated above.
ORDER
IT HEREBY IS ORDERED, that plaintiff's claims against defendants Captain Wilcox, Lt. Donahue, Lt. Hazelten, Lt. Strong, and Psychologist B. Vertoske are dismissed with prejudice;
FURTHER, that the Clerk of the Court is directed to terminate as parties to this action defendants Captain Wilcox, Lt. Donahue, Lt. Hazelton, Lt. Strong, and Psychologist B. Vertoske;
FURTHER, that the Clerk of the Court is directed to file plaintiff's papers, and to cause the United States Marshal to serve copies of the Summons, Amended Complaint, and this Order upon defendants Superintendent M. McGinnis, Sgt. Cutler, Sgt. Osbourn, C.O. Bristol, C.O. Collins, C.O. Shelly, C.O. Kamas and I.G.R.C. Rep. Ciancio without plaintiff's payment therefor, unpaid fees to be recoverable if this action terminates by monetary award in plaintiff's favor;
FURTHER, that pursuant to 42 U.S.C. § 1997e(g)(2), the defendants are directed to answer the complaint.
SO ORDERED.