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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
NEW YORK
RALPH DURRAN,
Plaintiff,
v.
DONALD SELSKY,
Director of Inmate Disciplinary Program D.O.C.S., et al.,
Defendants.
00-CV-6067L
251 F. Supp. 2d 1208
March 20, 2003, Decided
DECISION AND ORDER
PROCEDURAL BACKGROUND
Plaintiff,
Raphael Durran, appearing pro se, commenced this action under 42 U.S.C. § 1983.
Plaintiff, an inmate in the custody of the New York State Department of Correctional
Services, alleges that defendants violated his constitutional rights in a
number of respects, ranging from assault, denial of medical care, due process
violations in connection with a disciplinary hearing, and other acts, all of
which occurred [*1210] while plaintiff was confined at Southport Correctional
Facility ("Southport").
The original complaint named fourteen officials and employees of
DOCS as defendants. On August 3, 2000, the Court issued a Decision and Order
that, inter alia, sua sponte dismissed plaintiff's claims against six of those
defendants, as well as plaintiff's claims against all defendants regarding
false misbehavior reports and denial of adequate medical treatment. That left
the following defendants remaining: Donald Selsky, Director of the DOCS Inmate
Disciplinary Program; Southport Superintendent Michael McGinnis; Senior
Correctional Counselor Richard Cerio; Lieutenant Alan Hager; and Correction
Officers James Coleman, Dana Gridley, Daniel Morgan, and Herbert Williams.
On August 7, 2002, defendants Selsky, McGinnis, Hager and Cerio
moved for summary judgment on all remaining claims against them, pursuant to
Rule 56 of the Federal Rules of Civil Procedure. The notice of motion (Docket #
32), the Court's scheduling order setting the return date (Docket # 40), and
the so-called "Irby notice" sent by the Court to plaintiff (Docket #
41) informed plaintiff of the nature of a summary judgment motion, the
requirements of Rule 56, and the consequences of failing adequately to respond
to the motion.
August 30, 2002, plaintiff requested that he be allowed "to
conform the Complaint to the proof adduced at the Plaintiff's deposition,"
or in the alternative "to amend the Complaint in order to amplify the
pleading as to defendant Richard Cerio." Docket # 42.
In a Decision and Order entered on October 15, 2002, the Court
advised plaintiff that he had not adequately responded to the summary judgment
motion, and again informed him of the requirements of Rule 56. Docket # 43. The
Court extended plaintiff's time to respond to the motion to November 12, 2002.
On November 2, 2002, the Court issued another Decision and
Order, "recognizing that plaintiff may have been seeking an opportunity to
amend his complaint" in his August 30 letter, and giving him until
December 30, 2002 to file a motion to amend, along with a proposed amended
complaint. Docket # 44.
On January 3, 2003, plaintiff filed a document captioned
"Memorandum of Law in Support of 42 U.S.C. § 1983/Plaintiff's Amended
Complaint." n1 Docket # 45. This comprises an exact copy of the original
complaint (including plaintiff's previously-dismissed claims), plus a five-page
addendum setting forth additional allegations concerning Cerio, together with
several exhibits. In addition, although the body of the amended complaint lists
all fourteen original defendants, the caption on the cover sheet lists only
five: Cerio, Coleman, Gridley, Morgan, and Williams. It thus omits not only the
defendants dismissed in the Court's August 3, 2000 Decision and Order, but also
defendants Selsky, McGinnis, and Hager. No explanation for this omission is
given.
FACTUAL BACKGROUND
It is
undisputed that on March 7, 1997, plaintiff was removed from his cell and
temporarily taken to a shower room, while a search was conducted of his cell. A
correction officer ("C.O.") had allegedly been assaulted with a knife
or similar object by another inmate the day before, and a search was ordered of
all cells in the area. [*1211]
After his
cell was searched, plaintiff was removed from the shower by C.O.s Gridley and
Coleman to be escorted back to his cell, which was located on the floor below
the shower room. Plaintiff alleges that while they were in the stairwell,
Gridley and Coleman grabbed plaintiff and banged his head into the wall. They
then pushed him down the stairs, where several other officers, including Morgan and Williams,
were waiting. All the officers then proceeded to punch and kick plaintiff for
some time. The officers then picked plaintiff up and carried him to a different
shower room. Plaintiff subsequently received medical treatment for his
injuries.
Plaintiff alleges that the
reason for this assault was that he was friends with the inmate who had
allegedly slashed a C.O. on March 6. He claims that the assault was in
retaliation for the incident involving the other inmate.
Defendants admit that there
was an altercation involving plaintiff and some of these officers, but they
contend that plaintiff initiated it. Defendants allege that as Gridley and
Coleman were escorting plaintiff back to his cell, plaintiff attempted to kick
Coleman. The C.O.s then grabbed plaintiff's arms, but plaintiff began to
struggle. The officers were eventually able to place leg irons on plaintiff,
but he continued to struggle. They then picked him up and carried him to the
other shower room, where he was placed without further incident.
Following
this incident, plaintiff was issued a misbehavior ticket. A hearing was
conducted by defendant Cerio, who found plaintiff guilty of assault on a staff
member. Plaintiff was sentenced to 150 days in the Special Housing Unit
("SHU"), 60 days suspended, deferred for 180 days, meaning that
plaintiff had to spend at least 90 days in SHU. Plaintiff's administrative
appeal of Cerio's decision was denied by defendant Selsky on June 4, 1997.
Plaintiff alleges that his
due process rights were violated in a number of ways in connection with the
hearing before Cerio. He alleges, for example, that he was denied certain
witnesses whom he had requested, and that the hearing was not timely held as
required by New York State regulations.
DISCUSSION
I. Legal Standards
Summary judgment is appropriate where "there is no genuine
issue as to any material fact and ... the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment,
the court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in its favor." McKelvie v. Cooper, 190 F.3d 58, 61 (2d Cir.
1999). Where, as here, the plaintiff is proceeding pro se, the court will
liberally construe the plaintiff's pleadings, Haines v. Kerner, 404 U.S. 519,
521, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), and "interpret them 'to raise
the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d
276, 280 (2d Cir. 1999) (citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994)).
"Nevertheless,
proceeding pro se does not otherwise relieve a litigant from the usual
requirements of summary judgment." Gittens v. Garlock Sealing
Technologies, 19 F. Supp.2d 104, 110 (W.D.N.Y. 1998); see also Gil v. Vogilano,
131 F. Supp.2d 486, 491 (S.D.N.Y. 2001) ("the leniency accorded pro se
litigants 'is not without limits, and all normal rules of pleading are not
absolutely suspended'") (quoting Stinson v. Sheriff's Dep't, 499 F. Supp.
259, 262 (S.D.N.Y. 1980)). Thus, "pro se litigants who are properly
notified of the consequences of failing to respond to a motion for summary
judgment may not avoid the strictures" of Rule 56 if they [*1212] fail to
respond properly. Shabazz-Allah v. Guard Mgmt. Serv., 1999 U.S. Dist. Lexis
2582, No. 97 Civ. 8194, 1999 WL 123641, at *3 (S.D.N.Y. Mar. 8, 1999) (citing
Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996)), aff'd, 201 F.3d 432 (2d
Cir. 1999).
In the case
at bar, plaintiff, after being repeatedly informed both by the moving party and
by the Court of what he was required to do by Rule 56 in order properly to
respond to defendants' motion, and of the consequences if he failed to do so,
has not submitted a proper or adequate response. He has simply resubmitted his
original complaint, with some additional allegations against defendant Cerio.
Even if
plaintiff had failed to submit any response, however, summary judgment should
not be "granted automatically." Champion, 76 F.3d at 486. Rather,
summary judgment may be granted as long as the plaintiff has received notice
that failure to file an opposition may result in dismissal of his case and the
court is satisfied that the undisputed facts "show that the moving party
is entitled to a judgment as a matter of law." Id. at 486 (quoting Fed. R.
Civ. P. 56(c)); Gittens, 19 F. Supp.2d at 109. To put it another way,
"even when a nonmoving party chooses the perilous path of failing to
submit a response to a summary judgment motion, the district court may not
grant the motion without first examining the moving party's submission to
determine if it has met its burden of demonstrating that no material issue of
fact remains for trial." Amaker v. Foley, 274 F.3d 677, 681 (2d Cir.
2001).
In the instant case, it is
difficult to tell precisely what plaintiff intended by filing his
"memorandum"/amended complaint. It may be that, as indicated in his
August 30 letter, plaintiff simply wants to "amplify" his allegations
concerning Cerio. The fact that he named only five of the eight defendants
remaining in this case in the caption, however, suggests that he may be
abandoning his claims against the other three.
Mindful of my obligation to construe plaintiff's pleadings
liberally, however, I will assume that plaintiff did not intend to drop his
claims against Selsky, McGinnis, and Hager. I will also determine whether defendants
are entitled to summary judgment based on all the papers before me, including
plaintiff's January 3 submission.
II. Defendants' Motion
A. Claim Against McGinnis
Defendants
contend that plaintiff's claims against McGinnis should be dismissed because
plaintiff has failed to allege that McGinnis was personally involved in the
alleged constitutional deprivations. I agree.
"It is
well settled in this Circuit that personal involvement of defendants in the
alleged constitutional deprivations is a prerequisite to an award of damages
under § 1983." Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246,
254 (2d Cir. 2001) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995)); see also Gaston v. Coughlin, 249 F.3d 156, 164 (2d. Cir. 2001). The
personal involvement of a supervisory defendant may be shown by evidence that:
(1) the defendant participated directly in the alleged constitutional
violation; (2) the defendant, after being informed of the violation through a
report or appeal, failed to remedy the wrong; (3) the defendant created a
policy or custom under which unconstitutional practices occurred, or allowed
the continuance of such a policy or custom; (4) the defendant was grossly
negligent in supervising subordinates who committed the wrongful acts; or (5)
the defendant exhibited deliberate indifference to the rights of inmates by
failing to act on information indicating that unconstitutional acts were
occurring. Colon, 58 F.3d at 873; [*1213] Williams v. Smith, 781 F.2d 319,
323-24 (2d Cir. 1986).
In the case at bar, there is no evidence that McGinnis had any
involvement in the events giving rise to plaintiff's claims. Although the
complaint alleges that McGinnis and others fabricated certain documents in order
to "frame" plaintiff and "cover up the malfeasance and
misconduct" of the C.O.s, Complaint at 19, that unsubstantiated assertion
is not supported by any evidence in the record. n2
McGinnis himself states in an affidavit that he did not
participate, and was not involved in, any of the matters alleged by plaintiff.
n3 Docket # 37. That assertion stands uncontradicted. Plaintiff testified at
his deposition that he named McGinnis as a defendant simply because McGinnis
"is the maximum authority in the facility." Affirmation of Gary M.
Levine, Esq., (Docket # 39), Ex. A at 104. It is well established, however,
that "there is no respondeat
superior liability in § 1983 cases." Green v. Bauvi, 46 F.3d 189, 194 (2d
Cir. 1995) (citing Monell v. Dep 't of Social Servs., 436 U.S. 658, 691, 56 L.
Ed. 2d 611, 98 S. Ct. 2018 (1978)). Plaintiff must show that McGinnis was
personally involved in the acts that allegedly violated plaintiff's constitutional rights, and he has not done
so.
B. Claim Against Hager
The basis for plaintiff's claim against defendant Hager is that
Hager allegedly "failed to intervene" on plaintiff's behalf during the
assault against plaintiff. Complaint at 18. Defendants contend, however, that
plaintiff has also failed to show personal involvement by Hager in the alleged
deprivation.
It is true that a
correctional officer has an affirmative duty to intercede on behalf of an
inmate if the officer witnesses another officer assault the inmate in violation
of the inmate's Eighth Amendment rights. See O'Neill v. Krzeminiski, 839 F.2d
9, 11 (2d Cir. 1988). There is no evidence here, though, that Hager did witness
the alleged assault.
Hager states in his affidavit (Docket # 36) that he did not
observe any incident involving plaintiff on March 7, 1997. At his deposition,
plaintiff testified that he "saw [Hager] when [plaintiff] went outside"
the stairway door, i.e., after the assault ended. Levine Aff., Ex. A at 51, 53.
He also stated that he "didn't see [Hager] doing anything," and that
he did not know how long Hager had been standing there. Id. at 53. There is
thus no evidence that Hager witnessed the alleged assault, and no showing of
personal involvement on his part. Plaintiff's claim against Hager must
therefore be dismissed.
C. Claim Against Cerio
Plaintiff alleges that Cerio, who conducted the disciplinary
hearing that led to plaintiff's ninety-day confinement in SHU, violated his
constitutional right to due process in a number of respects. None of
plaintiff's allegations, however, can support a claim against Cerio. [*1214]
In evaluating an inmate's procedural due process claim with
respect to confinement within prison, a court must consider "'(1) whether
the plaintiff had a protected liberty interest in not being confined ... and,
if so, (2) whether the deprivation of that liberty interest occurred without
due process of law.'" Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000)
(quoting Sealey v. Giltner, 116 F.3d
47, 51 (2d Cir. 1997)). An inmate has a protected liberty interest in not being
confined only if "the deprivation ... is atypical and significant and the
state has created the liberty interest by statute or regulation." Tellier,
280 F.3d at 80 (quoting Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996));
accord Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000).
Although determining whether a particular confinement
"imposes [an] atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life," Sandin v. Conner, 515 U.S. 472,
484, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), will involve factual
determinations, Tellier, 280 F.3d at 80, "the ultimate issue of
atypicality is one of law." Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir.
1999). Among the factors to be considered are "(1) the effect of
disciplinary action on the length of prison confinement; (2) the extent to
which the conditions of the disciplinary segregation differ from other routine
prison conditions; and (3) the duration of the disciplinary segregation imposed
compared to discretionary confinement." Wright v. Coughlin, 132 F.3d 133,
136 (2d Cir. 1998) (citing Sandin, 515 U.S. at 484).
While the Second Circuit has "not established a bright-line
rule as to how lengthy a SHU confinement will be considered atypical and
significant," Sims v. Artuz, 230 F.3d 14, 23 (2d Cir. 2000), the court in Sealey, 197 F.3d at 589-90,
held that confinement of 101 days in SHU did not meet the Sandin standard.
Although the court has left open the possibility that SHU confinement of less
than 101 days could, depending on the particular conditions of that
confinement, be shown to constitute an atypical and severe hardship, see Colon
v. Howard, 215 F.3d 227, 232 n. 5 (2d Cir. 2000), following Sealey,
"courts 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." Tookes v. Artuz,
2002 U.S. Dist. Lexis 12540, No. 00 Civ. 4969, 2002 WL 1484391, at *3 (S.D.N.Y.
July 11, 2002); see also Colon, 215 F.3d at 232 (instructing district courts to
develop detailed factual records "in cases challenging SHU confinements of
durations within the range bracketed by 101 days and 305 days") (footnote
omitted); Alvarado v. Kerrigan, 152 F. Supp.2d 350 at 355 ("the cases show
a consensus in this Circuit that an inmate's confinement in the SHU for 101 days
or less--without further deprivation--does not constitute an atypical or
significant hardship"); see, e.g., Baker v. Finn, 2001 U.S. Dist. Lexis
7754, No. 00 Civ. 3886, 2001 WL 1338919, at *4 (S.D.N.Y. Oct. 31, 2001) (136
days); Jackson v. Johnson, 15 F. Supp.2d 341, 361-62 (S.D.N.Y. 1998) (99days);
Husbands v. McClellan, 990 F. Supp. 214, 216 (W.D.N.Y. 1998) (180 days).
In the case at bar, plaintiff has failed to show any
circumstances, other than the length of his confinement, to show that his
confinement in SHU for ninety days was in any way atypical or a significant
hardship in relation to the ordinary incidents of prison life. The entire focus
of his allegations is on the alleged due process violations in connection with
the disciplinary hearing, not on the conditions of his confinement. Plaintiff
has therefore not met the "atypical and significant hardship"
standard of Sandin, and Cerio is entitled to summary judgment on this claim.
See Taylor v. Rodriguez, 238 F.3d 188, 194 (2d [*1215]Cir. 2001) (even though
inmate plaintiff "did not receive the process that was due, he cannot
succeed on his [due process] claims if he fails to establish a protected
liberty interest").
D. Claim Against Selsky
Plaintiff alleges that defendant Selsky violated his due process
rights by affirming Cerio's decision following the disciplinary hearing. See
Complaint at 20. At his deposition, plaintiff testified that the basis for his
claim against Selsky was plaintiff's belief that Selsky "denied
[plaintiff's] appeal of this when [plaintiff] sent him evidence showing that
[plaintiff] was definitely not guilty of" the charges against him. Levine
Aff., Ex. A at 95.
Since plaintiff cannot make out a due process claim against
Cerio, however, his claim against Selsky is equally groundless. See Black v.
Selsky, 15 F. Supp.2d 311, 318 (W.D.N.Y. 1998) ("because Black's claims
against Ryan [the hearing officer] are meritless and Selsky's alleged
wrongdoing was based on his affirming Ryan's determination, there is no basis
for the claims against Selsky either"). Furthermore, there was clearly a
sufficient basis for Selsky's determination to meet the "some
evidence" standard of Superintendent v. Hill, 472 U.S. 445, 455, 86 L. Ed.
2d 356, 105 S. Ct. 2768 (1985).
CONCLUSION
Defendant's motion for summary judgment (Docket # 32) is
granted, and the complaint is dismissed as to defendants Donald Selsky, Michael
McGinnis, Richard Cerio, and Alan Hager.
IT IS SO ORDERED.
DAVID G. LARIMER
United States District Judge
Dated: March 20, 2003.
n1 Despite the "Memorandum of Law" caption, the
document cites no case law.
n2 In
addition, to the extent that plaintiff alleges that McGinnis was involved in
preparing or issuing false misbehavior reports against plaintiff, that claim
was dismissed by my August 3, 2000 Decision and Order.
n3
McGinnis did sign a memorandum to plaintiff dated March 14, 1997, advising
plaintiff that certain documents that plaintiff had requested could not be
provided to plaintiff at that time because they were not finalized. McGinnis
stated that the documents would be provided to plaintiff at his disciplinary
hearing. McGinnis Aff. Ex. B. Even interpreting plaintiff's claims "to
raise the strongest arguments that they suggest," McPherson, 174 F.3d at
280, I find that this act by McGinnis cannot provide the basis for any constitutional
claim.