14-438 - Allah v. Murphy et al [PDF 2949 KB]

252 Pages·2016·2.91 MB·English

Case 9:14-cv-00438-GTS-TWD Document 63 Filed 05/16/16 Page 1 of 252
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
KHAILAIRE ALLAH,
Plaintiff,
9:14-CV-0438
v.
(GTS/TWD)
SGT. MURPHY, et. al.,
Defendants.
_____________________________________________
APPEARANCES: OF COUNSEL:
KHAILAIRE ALLAH
Plaintiff pro se
01-B-0997
Marcy Correctional Facility
P.O. Box 3600
Marcy, New York 13403
HON. ERIC T. SCHNEIDERMAN TIMOTHY P. MULVEY, ESQ.
Attorney General for the State of New York Assistant Attorney General
Counsel for the Defendants
615 Erie Boulevard West
Syracuse, New York 13204
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
This pro se civil rights action, commenced by Plaintiff Khailaire Allah pursuant to 42
U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Glenn
T. Suddaby, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.
L.R. 72.3(c). Plaintiff claims that while he was in the custody of the New York State Department
of Corrections and Community Supervision ("DOCCS") and confined at Great Meadow
Correctional Facility ("Great Meadow C.F."), Defendants violated his First, Fourteenth, and
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Eighth Amendments rights. (See generally Dkt. No. 1-1.) Plaintiff seeks declaratory relief,
injunctive relief, and compensatory damages. Id. at 13.
Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules
of Civil Procedure. (Dkt. No. 47, 61.) Plaintiff filed papers in opposition to the motion. (Dkt.
Nos. 57 and 58.) For the reasons that follow, the Court recommends that the motion for
summary judgment (Dkt. No. 47) be granted in its entirety.
I. FACTUAL BACKGROUND
From June 2013 until October 2013, Plaintiff was confined in the Behavioral Health Unit
("BHU") at Great Meadow C.F.1 (Dkt. No. 1, generally.) On June 24, 2013, Plaintiff noticed
"irregularities" in the frequency and amount of mail he received. (Dkt. No. 1-1 at 2.) Plaintiff
discussed the issue with Defendant Sgt. Murphy ("Murphy") and Murphy responded that Plaintiff
received "all of the mail that he will receive, at this time." Id. On June 25, 2013, Murphy gave
Plaintiff one letter and told Plaintiff, "if [Murphy] got around to it, [Murphy would] bring the rest
of [Plaintiff's] mail later." Id. Later the same day, Plaintiff walked by the officer's station and
noticed a large, yellow envelope containing mail with Plaintiff's name and cell location. Id.
Plaintiff asked Murphy why he had not received the large, yellow envelope and Murphy
responded that Plaintiff, "received [his] mail for the night" and "don't worry about what's in the
officers station." (Dkt. No. 1-1 at 2.)
1 The BHU is a program that includes a separate housing location within a correctional
facility. The BHU provides services to a target population of incarcerated inmates who have a
demonstrated history of treatment resistance and poor custodial adjustment/behavior and who
would otherwise be serving a confinement sanction in a Special Housing Unit. This program has
an emphasis on cognitive and behavioral interventions. See http://www.docs.ny.gov (last visited
May 6, 2016).
2
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On June 26, 2013, Plaintiff addressed his concerns regarding his mail with C.O. Gordon
and Sgt. Bottane. (Dkt. No. 1-1 at 3.) Bottane directed Gordon to issue Plaintiff's mail. Id. On
the same day, Plaintiff wrote several grievances regarding his mail deprivation. (Dkt. No. 1-1 at
3; Dkt. No. 58 at 6.) Plaintiff also spoke to Defendants Captain Goodman ("Goodman") and
A.D.S.P. Tynon ("Tynon"). (Dkt. No. 1-1 at 3; Dkt. No. 58 at 6.)
On July 5, 2013, Plaintiff received a misbehavior report charging him with lewd conduct
and harassment. (Dkt. No. 57 at 12-13.) C.O. Londrigan ("Londrigan")2 issued the report on
July 4, 2013, and described the incident as follows:
. . . while assisting in the BHU evening rec run, [I] witnessed inmate
Allah Khalaire [sic] masterbating [sic] at his cell gate while blowing me
kisses. I informed additional staff and the inmate retreated to the back
of his cell. I entered the gallery and informed the area supervisor.
(Dkt. No. 57 at 12.)
After receiving the misbehavior report, Plaintiff met with an employee assistant to
prepare for his disciplinary hearing related to the charges. (Dkt. No. 1-1 at 7.) Plaintiff asked the
assistant to preserve video evidence for the hearing and to contact inmate/witnesses including
Inmate Stanley, who agreed to testify on Plaintiff's behalf. (Dkt. No. 1-1 at 7.)
"Immediately" after the misbehavior report was issued, the Acting Deputy Superintendent
of Security authorized an Exposer Control Order directing that a colored Exposer Placard be
placed on Plaintiff's cell door from July 5, 2013, until August 5, 2013.3 (Dkt. No. 57 at 17; Dkt.
2 On November 20, 2014, Londrigan was terminated as a defendant.
3 The Order is not dated and the record does not establish when the Order was executed.
The name of the Captain/Acting DSS who issued the Order is not clearly legible but Plaintiff
does not allege that any named defendant was responsible for issuing the Order.
3
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No. 58 at 7.) The Order also directed Plaintiff to wear an Exposer Control Suit (the "jumpsuit")
for thirty days. Id. The jumpsuit was "thick, tear-proof material" that was secured at the back of
a neck with a padlock and worn over Plaintiff's pants and shirt. (Dkt. No. 1-1 at 8.) Plaintiff was
required to wear the jumpsuit while in group counseling sessions, during visits with family,
during private interviews, in exercise areas and in the hospital. (Dkt. No. 57 at 17.) The Order
was issued in response to the July 4, 2013, incident where Plaintiff "purposely exposed himself
and masterbated [sic] outside his clothing at female staff." Id.
On July 18, 2013, Defendant Steven E. Racette ("Racette"), Superintendent of Great
Meadow C.F., forwarded a memorandum to Plaintiff regarding the Exposure Control Policy.
(Dkt. No. 57 at 18.) Racette indicated that, "[a]fter review by Central Office, the exposure
control suits are being used appropriately by Great Meadow." Id. On the same day, the
disciplinary hearing related to the July 2013, misbehavior report commenced with Tynon
presiding over the proceedings. (Dkt. No. 57 at 13.) Londrigan testified outside of Plaintiff's
presence, via speaker phone and Inmate Jason Lara was called to testify on Plaintiff's behalf.
(Dkt. No. 1-1 at 8; Dkt. No. 58 at 7.) Tynon did not review the video evidence and refused to
permit Inmate Stanley to testify. (Dkt. No. 1-1 at 8.)
On July 22, 2013, Plaintiff submitted a Disbursement Form (#2706), for Tynon's
approval, in the amount of $400.00 for filing fees for a civil action in the United States District
Court for the Northern District of New York. (Dkt. No. 1-1 at 3.) After Plaintiff submitted the
request, Plaintiff made several inquiries about the form because he was concerned that officers
were tampering with his mail. Id. at 4. On August 2, 2013, Plaintiff received his monthly
statement which indicated that $400.00 was deducted from his account. Id.
4
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On August 8, 2013, after several extensions of the disciplinary hearing, Plaintiff was
found guilty of lewd conduct and harassment and sentenced to forty-five days in the SHU. (Dkt.
No. 1-1 at 8; Dkt. No. 57 at 13.) Plaintiff's SHU confinement was scheduled to begin on
November 12, 2018, and terminate on December 22, 2018. (Dkt. No. 57 at 13.) The sentence
also included a loss of recreation, package, and phone privileges. Id. The loss of recreation
would commence on April 28, 2018, and expire on June 12, 2013. Id. The loss of packages was
scheduled to begin on November 20, 2022 and terminate on January 4, 2023 and the loss of
phone privileges extended from December 6, 2022, until January 23, 2023. Id.
On September 28, 2013, Defendant C.O. Fuller ("Fuller") conducted a search of Plaintiff's
cell and filed a misbehavior report charging Plaintiff with "ripping state sheets." (Dkt. No. 1-1 at
6.) At a subsequent hearing related to the misbehavior report, the charges were dismissed. Id.
On October 1, 2013, Plaintiff received notification that his lawsuit in the United States
District Court for the Northern District of New York, Allah v. Karandy, et. al., No. 9:13-CV-
0826 (FJS/TWD) ("Allah I") was dismissed for failure to timely remit filing fees. (Dkt. No. 1-1
at 4; Dkt. No. 57 at 2.) On October 4, 2013, Plaintiff provided the District Court with a letter
enclosing a copy of his monthly statement with verification that the filing fees were deducted
from his account. (Dkt. No. 1-1 at 4.) On October 7, 2013, Tynon provided Plaintiff with
"another" Disbursement Form so that Tynon could mail "another" check to the Court for the
filing fee. Id. On October 15, 2013, the Court received the appropriate filing fee for the action.
Id.
On October 29, 2013, Tynon's disciplinary determination was reviewed and reversed by
non-party Albert Prack ("Prack"), Director of Special Housing/Inmate Disciplinary Program.
5
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(Dkt. No. 57 at 19.) On October 31, 2013, Plaintiff received a Memorandum from non-party
Captain K. Brown ("Brown") advising Plaintiff that Tynon's decision was reversed. Id. at 20.
Brown notified Plaintiff that he would be released from "special housing" on March 11, 2017.
Id. In addition, recreation, package, and phone privileges would be restored on April 27, 2014,
November 19, 2018 and December 6, 2018, respectively, provided Plaintiff did not incur any
additional sanctions. Id.
II. PROCEDURAL HISTORY
Plaintiff filed his Complaint and applied for leave to proceed in forma pauperis in this
action on April 17, 2014. (Dkt. Nos. 1 and 9.) In a Decision and Order filed on November 20,
2014 (the "November Order"), the Court reviewed the Complaint in accordance with 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A. (Dkt. No. 12.) Upon review of the allegations, the Court directed:
(1) Fuller to respond to Plaintiff's retaliation claims related to a September 2013, misbehavior
report; (2) Tynon to respond to Plaintiff's due process claims; (3) Tynon, Racette, Goodman, and
J. Gleason ("Gleason"), BHU Chief, to respond to Plaintiff's Eighth Amendment claims related to
his conditions of confinement; and (4) Murphy and Tynon to respond to Plaintiff's First
Amendment mail claims. (Dkt. No. 12 at 11, 13, 15 and 17.) On November 25, 2015,
Defendants filed the motion for summary judgment now before me for Report and
Recommendation. (Dkt. No. 47.)
III. APPLICABLE LEGAL STANDARD
Summary judgment may be granted only if the submissions of the parties taken together
"show that there is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56; see Anderson v. Liberty Lobby, Inc., 477 U.S.
6
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242, 251-252 (1986). The party moving for summary judgment bears the initial burden of
showing, through the production of admissible evidence, that no genuine issue of material fact
exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is
"genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to
produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d
at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the
[plaintiff’s] pleading" or "simply show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
The nonmovant must come forward with admissible evidence sufficient to raise a genuine issue
of fact for trial in order to avoid summary judgment. Cordiano v. Metacon Gun Club, Inc., 575
F.3d 199, 204 (2d Cir. 2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
"Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue
of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
In determining whether a genuine issue of material fact exists, the court must resolve all
ambiguities and draw all reasonable inferences against the moving party. Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro
se, the court is obliged to "read [the pro se party’s] supporting papers liberally, and . . . interpret
them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994); see also Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998) ("pro se
parties are to be given special latitude on summary judgment motions.") (citations and internal
7
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quotation marks omitted). However, "a pro se party's 'bald assertion,' completely unsupported by
evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93
Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d
18, 21 (2d Cir. 1991)).4
While courts are required to give due deference to a plaintiff's pro se status, that status
"does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a
motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003).
In opposing Defendants' summary judgment motion, Plaintiff failed to respond to the Statement
of Material Facts filed by Defendants in the manner required under N.D.N.Y. L.R. 7.1(a)(3).5
Where, as in this case, a party has failed to respond to the movant's statement of material facts in
the manner required under N.D.N.Y. L.R. 7.1(a)(3), the facts in the movant's statement will be
accepted as true (1) to the extent they are supported by evidence in the record,6 and (2) the
nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of
4 Copies of unpublished decisions cited herein will be mailed to Plaintiff as a pro se
litigant. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
5 L.R. 7.1(a)(3) requires the opposing party to file a response to the movant's Statement
of Material Facts. Under the rule, the response "shall mirror the movant's Statement of Material
Facts by admitting and/or denying each of the movant’s assertions in matching numbered
paragraphs. Each denial shall set forth a specific citation to the record where the factual issue
arises."
6 L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported
facts set forth in the Statement of Material Facts that the opposing party does not specifically
controvert." However, see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241,
244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing
the absence of a genuine issue for trial, the district court may not rely solely on the statement of
undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the
citation to evidence in the record supports the assertion.") (citations omitted).
8
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failing to respond to the motion.7 See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
However, the Second Circuit, acknowledging a court's broad discretion to determine whether to
overlook a failure to comply with local rules, has held that "while a court is not required to
consider what the parties fail to point out in their [local rule statements of material facts], it may
in its discretion opt to conduct an assiduous review of the entire record even where one of the
parties has failed to file such a statement." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d
Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se
status, I have opted to review the entire record in determining if there are material facts in
dispute.
A party opposing summary judgment is required to submit admissible evidence. See
Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining
the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible
evidence.") (citation and internal quotation marks omitted). Where, as here, the Court elects to
conduct an independent review of the record on a motion for summary judgment, a plaintiff's
verified complaint should be treated as an affidavit.8 Colon v. Coughlin, 58 F.3d 865, 872 (2d
Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be
considered in determining whether material issues of fact exist . . . .") (citations omitted).
Plaintiff's Sworn Affidavits (Dkt. No. 57 at 2-6; Dkt. No. 58 at 2-4), which were signed under
7 Defendants have complied with L.R. 56.2 by providing Plaintiff with the requisite
notice of the consequences of his failure to respond to their summary judgment motion. (Dkt.
No. 47 at 1.)
8 Plaintiff’s Complaint was properly verified by declaration under 28 U.S.C. § 1746. See
LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (use
of the language "under penalty of perjury" substantially complies with 28 U.S.C. §1746).
9
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penalty of perjury, also constitute admissible evidence that can be considered in opposition to
Defendants' motion. See 28 U.S.C. § 1746 (authorizing the use of declarations made under
penalty of perjury when an affidavit is required or permitted to be used).
Plaintiff's unsworn statements are generally inadmissible in opposition to a motion for
summary judgment. See, e.g., Witzenburg v. Jurgens, No. CV-05-4827, 2009 WL 1033395, at
*11 (E.D.N.Y. April 14, 2009) (holding that unsworn declarations are inadmissible for purposes
of Rule 56 and cannot be considered by the court in deciding the motion for summary judgment).
Even so, on summary judgment motions involving pro se plaintiffs, courts have been known to
consider unsworn submissions in opposition. See, e.g., Hamm v. Hatcher, No. 05 Civ. 503, 2013
WL 71770, at *7 (S.D.N.Y. Jan. 7, 2013) (to afford pro se plaintiff special solicitude, the court
considered unsworn statements in his opposition papers but only to the extent based on personal
knowledge or supported by other admissible evidence in the record, on the assumption that if the
allegations were sufficient to raise an issue of fact, plaintiff would be given the opportunity to
submit an affidavit properly attesting to the allegations); Robles v. Khahaifa, No. 09CV718, 2012
WL 2401574, at *7 (W.D.N.Y. June 25, 2012). In deference to Plaintiff’s pro se status, the
Court will consider Plaintiff's unsworn "Plaintiff's Brief in Opposition to Defendant's Summary
Judgment Motion" and the Affidavit of Jason Lara. (Dkt. No. 57 at 9-11; Dkt. No. 58 at 5-7.)
IV. ANALYSIS
Defendants move for judgment as a matter of law and dismissal of all of Plaintiff's
allegations.9 Defendants argue that the "de minimus" delay in delivering Plaintiff's mail did not
9 In the Complaint, Plaintiff attempts to assert claims against "each defendant [. . .] in
their individual and official capacity." (Dkt. No. 1-1 at 1.) Insofar as plaintiff seeks an award of
money damages pursuant to Section 1983 against the state defendants in their official capacities,
10