Opinion
13 CV 826 (VB)
12-23-2013
CADMAN WILLIAMS JR., Plaintiff, v. DEPUTY RAMOS, CAPTAIN SIMPSON, CORRECTION OFFICER(S): MUNDY, FERRERA, DIAZ, MACCEAB, and a female CO named THOMPSON of the City of New York Department of Corrections, in their individual and in their official capacity, Defendants.
MEMORANDUM DECISION :
Plaintiff Cadman Williams Jr., proceeding pro se, brings this Section 1983 prisoner civil rights action alleging defendants violated his constitutional rights.
Now pending is defendants' motion to dismiss. (Doc. #23). For the following reasons, the motion is GRANTED in part and DENIED in part.
This motion was filed by defendants Simpson and Mundy (the "Moving Defendants"). Only the Moving Defendants have been served; but they request the Court dismiss this action as to all defendants. The Court declines to do so. Because plaintiff has stated a claim against unserved defendant Diaz (as well as the Moving Defendants), the Court will separately issue an Order pursuant to Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997), directing defense counsel to ascertain the full name and badge number of C.O. Diaz and the address where he may be served.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
BACKGROUND
For purposes of ruling on this motion, the Court accepts as true all well-pleaded factual allegations in the complaint and draws all reasonable inferences in favor of plaintiff.
Plaintiff is a pre-trial detainee who at all relevant times was incarcerated at the Otis Bantam Correctional Center ("OBCC") on Rikers Island, a facility operated by the New York City Department of Correction. Plaintiff alleges he was originally housed in a minimum-security facility called "5W," but was later moved to a "high security" area, and then to "1 West," a "segregation house" for "dangerous inmates."
According to the complaint, while plaintiff was housed in "1 West," Deputy Ramos ordered it "locked down" for five and one-half days, depriving plaintiff of all "communication with the outside world," including "visits," "telephone usage," and "mail." Plaintiff also claims he could not speak to his attorney or visit the law library during this time.
During the lockdown, plaintiff alleges, Deputy Ramos's "subordinates" searched plaintiff's cell, confiscated plaintiff's "legal papers," "religious items, and books," and served plaintiff cold food, putting him at risk for "sever[e] health problems."
Immediately after the lockdown, plaintiff was "informed that he was being transferred out of OBCC, and [was] taken down to OBCC's intake area in preparation for transfer." However, plaintiff was not transferred; he was confined to a cell in the intake area for an additional four days, where he was denied "access to showers" and "medical attention." During this time, plaintiff alleges, he complained of pain in his "back, neck, and elbow" stemming from a slip-and-fall accident, but was told by Captain Simpson to "stop crying and just hold it down." Plaintiff alleges "a correction officer" threatened him and others in the intake area that "if you don't come get your food and eat you'll get fucked up."
Plaintiff subsequently filed an "institutional grievance" he alleges was "never answered."
Defendants move to dismiss on the following grounds: (i) plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), before filing this action, (ii) plaintiff fails to state a constitutional claim, (iii) plaintiff fails to allege the personal involvement of defendants "in the vast majority of his allegations," (iv) plaintiff's claims against defendants in their official capacities do not establish municipal liability, and (v) plaintiff is not entitled to recover compensatory or punitive damages.
DISCUSSION
I. Legal Standard
The function of a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (internal quotation marks omitted). In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court evaluates the sufficiency of the complaint under the "two-pronged approach" announced by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion to dismiss, the allegations in the complaint must meet a standard of "plausibility." Id. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
The Court liberally construes submissions of a pro se litigant and interprets them "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks omitted). Additionally, the Court applies the pleading rules permissively when a pro se plaintiff alleges civil rights violations. See Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008). "Although the Court is typically confined to the allegations contained within the four corners of the complaint, when analyzing the sufficiency of a pro se pleading, a court may consider factual allegations contained in a pro se litigant's opposition papers and other court filings." Rodriguez v. Rodriguez, 2013 WL 4779639, at *1 (S.D.N.Y. July 8, 2013) (citations and internal quotation marks omitted).
Plaintiff will be provided with copies of all unpublished opinions cited in this ruling. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
II. Exhaustion of Administrative Remedies
Under Rule 12(b)(6), dismissal is appropriate when, on the face of the complaint, it is clear plaintiff did not exhaust all remedies, including all administrative appeals, before commencing the action. Woodford v. Ngo, 548 U.S. 81, 90-93 (2006); Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011); McCoy v. Goord, 255 F. Supp. 2d 233, 246-51 (S.D.N.Y. 2006).
It is not clear from the face of the complaint that plaintiff has failed to exhaust his administrative remedies. Accordingly, defendants' motion to dismiss on this ground is denied.
III. Section 1983 Claims
A. Confinement
Plaintiff challenges the constitutionality of his nine-and-one-half-day confinement—first, in 1 West during the lockdown, and subsequently, in the intake area. Construed liberally, plaintiff's complaint alleges a violation of his Fourteenth Amendment liberty interest in freedom from restraint.
A pre-trial detainee's "liberty interest in freedom from restraint is highly qualified and must be balanced against the state's reasons for restraining that liberty." Benjamin v. Fraser, 264 F.3d 175, 188 (2d Cir. 2001). Thus, "[a]bsent a showing of an expressed intent to punish," courts in this circuit consider whether there is "an alternative purpose to which [the restriction] may rationally be connected . . . and whether [the restriction] appears excessive in relation to the alternative purpose." Id. (quoting Bell v. Wolfish, 441 U.S. 520, 538 (1979)). "Generally, a prison authority's strong governmental interest in maintaining order, when balanced against an inmate's narrow range of liberty interests, requires that prison officials have broad administrative and discretionary authority to make disciplinary decisions." Taylor v. Santana, 2007 WL 737485, at *4 (S.D.N.Y. Mar. 6, 2007).
Here, plaintiff alleges his entire housing unit was locked down; thus, the Court cannot infer defendants intended to single plaintiff out for punishment. Moreover, as 1 West is alleged to house "dangerous inmates," plaintiff has not plausibly alleged the five-day lockdown of 1 West was excessive in light of the strong governmental interest in maintaining order in prisons. The government's interest in security is arguably even greater in the prison's intake area, where prisoners are allegedly held during transit between facilities.
Accordingly, plaintiff has failed to plead a due process violation arising from his confinement during the lockdown in 1 West and in the intake area.
B. Transfer to Higher-Security Housing
In his opposition, plaintiff also objects to twice being transferred to higher-security housing, arguing nothing "merit[ed]" the transfers. Liberally construed, the opposition alleges plaintiff was deprived of a liberty interest in remaining in minimum-security housing.
"A prisoner has no liberty interest in remaining at a particular correctional facility but prison authorities may not transfer an inmate in retaliation for the exercise of constitutionally protected rights." Davis v. Kelly, 160 F.3d 917, 920 (2d Cir. 1998) (citations omitted). This is so "even if the degree of confinement or the living conditions in one institution are more disagreeable than in another." Fate v. Goord, 2012 WL 3104884, at *7 (S.D.N.Y. July 31, 2012).
As plaintiff nowhere alleges he was transferred to higher-security housing in retaliation for exercising a constitutional right, these allegations cannot support a due process claim. See Thomas v. Annucci, 2008 WL 3884371, at *3 (N.D.N.Y. July 29, 2008) (dismissing inmate's claim that prison official-defendants deprived him of due process by failing to transfer him to minimum-security prison).
Accordingly, plaintiff has failed to plead a due process violation arising from his transfer to higher-security housing.
C. Visitation, Phone Calls, and Mail
Plaintiff alleges he was deprived of "communicating with the outside world" via personal visits, phone calls, and mail. Construed liberally, plaintiff's complaint alleges a violation of his First Amendment right of intimate association.
1. Visitation
The right of intimate association "is among the rights least compatible with incarceration," which, by definition, requires confinement. Overton v. Bazzetta, 539 U.S. 126, 131 (2003). Although incarcerated prisoners retain some limited right of intimate association, the Supreme Court has upheld restrictions on inmates' visitation rights so long as they bear a "rational relation to legitimate penological interests"—chief among them, security. Id. at 132. In prisoner challenges to restrictions on visitation rights, the burden is "not on the State to prove the validity of prison regulations but on the prisoner to disprove it." Id.
Here, because plaintiff failed to allege facts suggesting the restriction of his visitation rights was unreasonable—and because courts in this circuit regularly uphold restrictions of greater duration, see, e.g., Calderon v. Lantz, 2006 WL 2092080, at *4 (D. Conn. July 24, 2006) (concluding the denial of visits "for a little over one month" was "not cognizable under [S]ection 1983")—plaintiff's allegation he was denied visits and contact with the outside world for nine and one-half days does not plausibly allege a conditions-of-confinement claim.
2. Phone Calls, Mail
Prisoners enjoy no "absolute right to make telephone calls, and prison regulations may reasonably restrict mail . . . between inmates and outsiders." Banks v. Argo, 2012 WL 4471585, at *6 (S.D.N.Y. Sept. 25, 2012). Restrictions on prisoner communications, like those regarding visitation, are valid if "reasonably related to legitimate penological interests." Thornburgh v. Abbott, 490 U.S. 401, 409, 413 (1989).
Here, the facts alleged by plaintiff suggest the temporary curtailment of his communications with family did, in fact, bear a reasonable relationship to a legitimate penological interest: ensuring security in 1 West and the prison intake area. See Banks v. Argo, 2012 WL 4471585, at *6 (S.D.N.Y. Sept. 25, 2012) (dismissing constitutional claims of incarcerated pro se plaintiff challenging restriction on telephone calls, mail communications, lasting up to thirteen days).
Accordingly, plaintiff has not plausibly pleaded a conditions-of-confinement claim based on the denial of phone and mail communications.
D. Communications with Counsel, Use of Law Library
Plaintiff alleges that during the lockdown he was deprived of contact with defense counsel and denied access to the law library. Plaintiff's allegations implicate his fundamental right of access to the courts arising under the Fourteenth Amendment.
Prisoners "have a constitutional right of access to the courts" that "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bourdon v. Loughren, 386 F.3d 88, 92-93 (2d Cir. 2004) (quoting Bounds v. Smith, 420 U.S. 817, 821, 828 (1977)). However, "prison law libraries and legal assistance programs are not [constitutionally mandated] ends in themselves, but only the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Lewis v. Casey, 518 U.S. 343, 351 (1996) (internal quotation marks omitted). Accordingly, a plaintiff does not state a constitutional claim merely by alleging he was denied access to the prison law library for a time; he must also allege the denial frustrated his ability to challenge his confinement—directly or collaterally—in court. Id. at 354-55.
Here, plaintiff's allegation he was temporarily denied access to the law library and to counsel fails to state a constitutional claim. First, plaintiff has failed to allege his confinement in any way hindered his ability to prosecute this action or to prepare for his criminal trial. Second, as noted above, plaintiff has failed to allege facts from which the Court could infer OBCC lacked any legitimate penological interest in temporarily confining him.
In the absence of any such allegation, plaintiff's claim must be dismissed. See Lewis v. Casey, 518 U.S. at 362 (so long as regulations delaying detainees' access to law library and counsel are reasonably related to legitimate penological interest, delays of up to sixteen days are not of constitutional significance, even when they result in actual injury).
E. Conditions of Confinement
Plaintiff challenges as unconstitutional the conditions of his confinement during the nine and one-half days at issue. Specifically, plaintiff alleges he was served cold food, deprived of showers, and subjected to verbal threats by OBCC personnel. As plaintiff is a pre-trial detainee, his claim arises under the Due Process Clause of the Fourteenth Amendment. Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996).
To state a claim for constitutionally inadequate conditions of confinement, a pre-trial detainee must plead facts satisfying both objective and subjective criteria: (i) the deprivation alleged must be, objectively, sufficiently serious; and (ii) a prison official must exhibit subjective "deliberate indifference" to inmate health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Under the objective prong, only extreme deprivations—those denying "the minimal civilized measure of life's necessities"—suffice to state a claim. Wilson v. Seiter, 501 U.S. 294, 298 (1991); see Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999). Under the subjective prong, "a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. at 837.
Although a convicted prisoner's conditions-of-confinement claim arises under the Eighth rather than the Fourteenth Amendment, "a pre-trial detainee's claim of deliberate indifference is analyzed under the same test as an Eighth Amendment claim for deliberate indifference." Williams v. Dep't of Corrs., 2011 WL 3962596, at *3 (S.D.N.Y. Sept. 7, 2011).
1. Cold Food
The Constitution requires prisoners be served "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, 15 (2d Cir. 1983).
Here, plaintiff's assertion he was put at risk of serious illness by being served cold food does not plausibly allege a cognizable deprivation, which generally requires a showing of harm. Compare Cruz v. Jackson, 1997 WL 45348, at *6 (S.D.N.Y. Feb. 5, 1997) (prisoner alleging he was regularly served cold food failed to allege substantial deprivation) and Fisher v. Dep't of Corrs., 1995 WL 608379, at *5 (S.D.N.Y. Oct. 16, 1995) (same) with Newman v. Zenk, 2007 WL 6888112, at *4 (E.D.N.Y. Mar. 29, 2007) (prisoner alleging "severe stomach pain, diarrhea, vomiting, weakness and loss of appetite" following consumption of "spoiled" food on five occasions pleaded cognizable deprivation).
Moreover, as plaintiff fails to allege any defendant was aware of, but deliberately indifferent to, complaints or other evidence of food-borne illness resulting from prisoners' being served cold food, he also fails to plead subjective deliberate indifference. See Newman v. Zenk, 2007 WL 6888112, at *5-6.
Accordingly, plaintiff's allegations regarding cold food do not plausibly plead a conditions-of-confinement claim.
2. Showers
Courts in this circuit routinely reject conditions-of-confinement claims based on the temporary denial of showers lasting longer than that at issue here. See, e.g., Banks v. Argo, 2012 WL 4471585, at *4 (S.D.N.Y. Sept. 25, 2012) ("[E]ven assuming prison officials denied Plaintiff shower access for the entire time alleged in his complaint—thirteen days—his claim still fails as a matter of law.") (citing McCoy v. Goord, 255 F. Supp. 2d 233, 260 (S.D.N.Y. 2003) ( "[A] two-week suspension of shower privileges does not suffice as a denial of 'basic hygienic needs.'")).
Thus, plaintiff's allegation he was not permitted to shower during his nine-and-one-half-day confinement also fails to plead a cognizable constitutional deprivation.
Similarly, allegations raised for the first time in plaintiff's opposition that he was temporarily deprived of "soap, toothpaste," and a "toothbrush" do not plausibly plead a conditions-of-confinement challenge. See Fisher v. Dep't of Corrs., 1995 WL 608379, at *5 (deprivation of toothpaste and soap for the first eight days of confinement in segregation unit did not "rise to the level of a constitutional violation").
3. Threats
Verbal threats and abusive language, in the absence of physical injury, do not violate any constitutionally protected right; therefore, they are not actionable under Section 1983. Jones v. Harris, 665 F. Supp. 2d 384, 396 (S.D.N.Y. 2009); see also Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (isolated episodes of harassment of inmate did not involve a harm of federal constitutional proportions).
Here, plaintiff alleges an unnamed corrections officer verbally threatened him in the intake area, but does not allege any physical injury. Plaintiff thus fails to allege a plausible conditions-of-confinement claim based on verbal threats.
In his opposition, plaintiff alleges for the first time that he was threatened by Mundy, Diaz, and Simpson for filing a grievance against them in response to the lockdown. Because he alleges no harm in connection with these threats, this allegation fails to plead a plausible Section 1983 claim. Moreover, to the extent this allegation could be construed as a First Amendment retaliation claim, such a claim must be dismissed for failure to plead (i) adverse action taken by defendants, and (ii) a causal connection between plaintiff's protected speech and the adverse action. See Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004).
F. Denial of Medical Care
Plaintiff alleges that while being held in the intake area, he requested but was denied medical care for injuries suffered during a slip-and-fall accident. Plaintiff thus alleges a violation of the constitutional prohibition on cruel and unusual punishment. Although a pre-trial detainee's right to be free from cruel and unusual punishment is rooted in the Fourteenth Amendment's protection of due process, Eighth Amendment analysis governs the merits of such a claim. See Weyant v. Okst, 101 F.3d at 856 (citing Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).
To plead a claim for denial of medical treatment under the Fourteenth Amendment, a pre-trial detainee must allege "deliberate indifference to serious medical needs [which] constitutes the unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 104 (1976). Here, as in the context of a conditions-of-confinement challenge, a plaintiff must plead objective and subjective indifference, although the particulars of the analyses differ.
To satisfy the subjective test, a plaintiff must allege the defendant had a mental state akin to recklessness, which "requires that the charged official act[ed] or fail[ed] to act while actually aware of a substantial risk that serious inmate harm will result." Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 836-37 (1994)). This obligates plaintiff to allege "something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Farmer v. Brennan, 511 U.S. at 835.
Plaintiff must plead two sub-components to satisfy the objective test. Salahuddin v. Goord, 467 F.3d at 279-80. First, plaintiff must allege he was actually deprived of adequate care, meaning the prison official acted unreasonably when faced with a prisoner's heath risk. Id. Second, if plaintiff says no care was provided, he must allege his condition was "sufficiently serious" such that it caused or will likely cause "death, degeneration, or extreme pain." Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005); see Wilson v. Seiter, 501 U.S. 294, 298 (1991) (finding only "deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation" (internal quotation marks omitted)). "Factors relevant to the seriousness of a medical condition include whether 'a reasonable doctor or patient would find [it] important and worthy of comment,' whether the condition 'significantly affects an individual's daily activities,' and whether it causes 'chronic and substantial pain.'" Salahuddin v. Goord, 467 F.3d at 280 (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). If plaintiff claims "the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry 'focus[es] on the challenged delay . . . rather than the prisoner's underlying medical condition alone.'" Id. (quoting Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)).
Plaintiff alleges he sustained "2nd degree burns that had to be dressed at least twice a day" and hurt his back and elbow when he slipped and fell while carrying hot water. Subsequently, while being detained in the intake area, plaintiff alleges he "let defendants and intake officers know he needed his dressing changed and . . . was feeling excruc[i]ating pain in his lower back," but "was told by Capt. Simpson to shut the fuck up and hold it down and to write another griev[ance] about it which was funny to Mundy & Diaz."
Plaintiff's allegations suffice to state a claim for deliberate indifference.
As to the objective prong, plaintiff has alleged a "sufficiently serious" condition likely to cause "extreme pain." Johnson v. Wright, 412 F.3d at 403; see Cole v. Artuz, 2000 WL 760749, at *5 (S.D.N.Y. June 12, 2000) ("[T]he level of pain experienced by [plaintiff] must be viewed in the light most favorable to [him] on a 12(b)(6) motion.").
Defendants object that the medical records attached to plaintiff's opposition demonstrate his burns had healed more than two months prior to this incident. Although this argument may ultimately have merit, it is premature. Because it is improper for the Court to consider extrinsic evidence attached to a motion to dismiss without converting the motion to dismiss to a motion for summary judgment, the Court will not consider the unauthenticated documentary evidence attached to plaintiff's opposition in deciding the instant motion. See Fed.R.Civ.P. 12(d); Amaker v. Weiner, 179 F.3d 48, 50 (2d Cir. 1999).
As to the subjective prong, Simpson's reply to plaintiff—taken as true—plausibly suggests Simpson was aware his failure to act would result in serious harm. And, although a closer call, the allegation that Mundy and Diaz found Simpson's statement "funny" suggests they were within earshot of plaintiff and Simpson, were aware plaintiff was complaining of "excruc[i]ating pain," but did nothing in response.
Accordingly, defendants' motion to dismiss is denied as to this claim.
In his opposition, plaintiff alleges for the first time that on August 2, 2013, Officer Mundy "slap[ped] plaintiff twice in the back of his head" and when plaintiff asked "to go to the [medical] clinic . . . he was told Fuck you." In their reply, defendants argue these allegations "describe[] no injury at all . . . and accordingly cannot state a claim either of excessive force or deliberate indifference to a medical need." The Court agrees. Accordingly, plaintiff's claim of deliberate indifference to a medical need may proceed only with respect to the alleged incident in the intake area. Moreover, as plaintiff does not allege a municipal policy or custom of denying prisoners adequate medical care, plaintiff fails to state a claim for municipal liability against defendants Simpson, Mundy, and Diaz in their official capacities. See Hafer v. Melo, 502 U.S. 21, 25 (1991) ("Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, the entity's 'policy or custom' must have played a part in the violation of federal law." (internal quotation marks omitted)). --------
G. Search of Cell and Confiscation of Personal Property
Plaintiff challenges the search of his cell and confiscation of his personal property. These challenges implicate the Fourth Amendment's prohibition of unreasonable searches and seizures, the Fourteenth Amendment's guarantees of procedural due process, and the Free Exercise Clause of the First Amendment.
1. Unreasonable Search and Seizure
"A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order" in prisons. Hudson v. Palmer, 468 U.S. 517, 527-28 (1984). "[P]rison officials are presumed to do their best to evaluate and monitor objectively the security needs of the institution and the inmates in their custody, and then to determine whether and when such concerns necessitate a search of a prison cell." United States v. Cohen, 796 F.2d 20, 23 (2d Cir. 1986) (emphasis altered). Accordingly, when a prison official initiates the search of a pre-trial detainee's cell, the search is not "subject to constitutional challenge, regardless of whether security needs could justify it." Id. at 24.
Here, because the search of plaintiff's cell and the resulting seizure of plaintiff's legal papers, religious items, and books were initiated and carried out by prison personnel, plaintiff cannot as a matter of law challenge the search and seizure in a Section 1983 action. See Ortiz v. City of New York, 2012 WL 6200397, at *7 (S.D.N.Y. Dec. 12, 2012) (dismissing pre-trial detainee's Fourth Amendment challenge to search of cell, destruction of prosthetic leg, other personal property).
2. Procedural Due Process
"An unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. at 533. Here, such a remedy was available to plaintiff in the form of an action in the New York Court of Claims, but apparently was not pursued. See Davis v. New York, 311 F. App'x 397, 400 (2d Cir. 2009) (summary order) (Court of Claims action is adequate postdeprivation remedy, precludes prisoner's due process claim for lost personal property); Brooks v. Jackson, 2013 WL 5339151, at *10 (S.D.N.Y. Sept. 23, 2013) (same).
3. Free Exercise
Liberally construed, plaintiff's allegation that certain "religious items" were seized from his cell also implicates the First Amendment right of free exercise of religion.
Although inmates "clearly retain protections afforded by the First Amendment," O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987), "the constitution does not prohibit reasonable prison regulations which arguably interfere with an inmate's religious practices." Bryan v. F.C.I. Otisville, 897 F. Supp. 134, 137 (S.D.N.Y. 1995); see Salahuddin v. Goord, 467 F.3d at 274-75 (prisoner must make threshold showing that disputed conduct "substantially burdens his sincerely held religious beliefs").
The complaint fails plausibly to allege defendants "substantially burden[ed plaintiff's] sincerely held religious beliefs" because it is unclear what religious items were seized from plaintiff's cell or whether they were ever returned. Salahuddin v. Goord, 467 F.3d at 274-75.
Accordingly, plaintiff's claims arising from the search and seizure of his personal property are dismissed.
IV. Leave to Amend
As plaintiff is pro se and proceeding in forma pauperis, the Court would ordinarily grant plaintiff leave to amend his complaint to replead all factually insufficient claims. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (district court generally should not dismiss pro se complaint without granting at least one opportunity to replead factually insufficient claims). Here, however, because the Court is permitting this case to proceed on the denial of medical care claim, and because the Court has already considered several new and supplemental allegations made by plaintiff for the first time in his opposition, the Court declines to grant plaintiff sua sponte leave to further amend the complaint.
CONCLUSION
Defendants' motion to dismiss is GRANTED as to (i) plaintiff's due process challenge to his continuous confinement; (ii) plaintiff's due process challenge to his transfer to higher-security housing; (iii) plaintiff's First Amendment challenge to his denial of visitation, and the temporary restriction of his communication by phone and mail; (iv) plaintiff's claim he was denied access to the courts; (v) plaintiff's Fourteenth Amendment challenge to the conditions of his confinement; and (vi) plaintiff's First, Fourth, and Fourteenth Amendment challenges to the search and seizure of his personal property.
Defendants' motion to dismiss is DENIED only as to plaintiff's claim that defendants Simpson, Mundy, and Diaz were deliberately indifferent to plaintiff's serious medical needs, in violation of the Fourteenth Amendment.
The Clerk is instructed to terminate the motion. (Doc. #23).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Dated: December 23, 2013
White Plains, NY
SO ORDERED:
/s/_________
Vincent L. Briccetti
United States District Judge