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UNITED
STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
NEW YORK
MARK A. DIXON,
Plaintiff,
-against-
COMMISSIONER GLENN S.GOORD, et al.,
Defendants.
01 Civ. 1660 (VM)
224 F. Supp. 2d 739
October 23, 2002,
Decided
October 24, 2002, Filed
VICTOR MARRERO, United States District Judge
Plaintiff Mark Dixon
("Dixon"), proceeding pro se, brings this action under 42 U.S.C. §
1983 claiming violations of his constitutional rights under the Eighth and
Fourteenth Amendments of the United States Constitution. Defendants, the
Commissioner of the New York Department of Corrections ("DOCS") and
other DOCS officials and corrections officers (collectively, "Defendants"),
have moved for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure dismissing the claims against them. For the reasons set forth
below, the Court grants the motion in its entirety.
I. BACKGROUND n1
On December 1, 1999, Corrections
Officer J. Erns ("Erns") was attacked by inmate Motley
("Motley") at the Green Haven Correctional Facility ("Green
Haven"). While Erns was attempting to subdue Motley, two other inmates
struck Erns. One inmate was identified by Erns as Williams, but Erns could not
identify the third. Corrections Officer M. Dickinson ("Dickinson")
claimed to have witnessed the incident and identified Dixon as the third inmate
who struck Erns. Dickinson wrote a misbehavior report charging Dixon with
violating DOCS Disciplinary Rule 100.11 (Assault on Staff), Rule 106.10
(Refusal to Obey a Direct Order), and Rule 107.10 (Physical Obstruction and
Interference).
On December 7, 1999, a Tier III
disciplinary hearing on the charges against Dixon began at Green Haven. The
hearing ended on December 15, 1999. The Deputy Superintendent of Green Haven,
Defendant George Schneider ("Schneider"), presided as the hearing
officer.
At Dixon's request, seven
witnesses testified at the hearing, four inmates and three prison officers.
Another witness, identified by Dixon as a "Latino officer," was not
called. Dixon's request to call this additional witness was refused because
Schneider did not know who this potential witness was.
At the hearings, Erns testified that he
could not identify the inmate who struck him while he was subduing Motley.
Later in the hearings, Erns was asked by Schneider whether he had any reason to
believe that Dixon was the inmate who struck him. In response to this question,
Erns answered "No, sir, I do not." (Dixon Dep. at 68-69.) n2
Dickinson positively [*742] identified Dixon as the inmate who he struck Erns.
Schneider found Dixon guilty of
all charges and sentenced him to 48 months in the Special Housing Unit
("SHU") and loss of various privileges. DOCS Commissioner, Glenn S.
Goord ("Goord"), reduced the sentence to 36 months of SHU and loss of
privileges, and the Office of Inmate Discipline ("OID") later
affirmed the disciplinary hearing determination, but reduced Dixon's sentence
in SHU to 18 months. Dixon then commenced a proceeding in the Supreme Court of
the State of New York pursuant to Article 78 of the New York Civil Practice Law
and Rules ("CPLR") challenging the determination of guilt on due
process grounds. The state court ordered the annulment of the determination of
guilt because the tape of the original hearing could not be located and
directed a new disciplinary hearing. At the new disciplinary hearing, which
took place on November 21, 2000, Dixon was found not guilty. Dixon was then
released from SHU and transferred from the Upstate Correctional Facility
("Upstate") to Clinton Correctional Facility.
Dixon alleges that his
Fourteenth Amendment due process rights were violated during the course of the
disciplinary hearing because (i) Schneider did not locate and call the Latino
officer Dixon had requested, (ii) the tape of the hearing was tampered with,
obfuscating a statement made by Erns in response to the question as to whether
Erns had any reason to believe Dixon was the inmate who struck him, which Dixon
alleges is the "apex" of his defense, and (iii) Schneider disregarded
Erns's answer to the aforementioned question.
In
addition, Dixon alleges that the sentence ordered by Schneider as a result of
the Tier III disciplinary hearing, 48 months of SHU and 48 months loss of
privileges, was cruel and unusual punishment in violation of the Eighth
Amendment.
The remainder of Dixon's claims arise from his alleged mistreatment
during his SHU confinement, which Dixon also asserts violated his Eighth
Amendment rights. In particular, Dixon alleges that he was (i) cut off from
prison population, his computer refurbishing program, daily movement, religious
services, legal research, medical showers and personal property, (ii) denied
timely legal services and limited access to legal materials, (iii) denied
annual teeth cleaning, (iv) subjected to second-hand smoke, (v) given limited
food access, which caused him to lose weight, and (vi) packed up and
transferred to SHU, resulting in a loss of property. Dixon also alleges that he
suffered a physical attack from a cell mate. Dixon contends that all three
Defendants are liable on each of the foregoing claims.
In
their motion for summary judgment, Defendants allege that Dixon's due process
claims cannot withstand summary judgment because (i) Erns's alleged exculpatory
answer was not in actuality exculpatory and was, in any event, audible; (ii)
regardless of Dixon's tampering claim, a recording of the hearing is not
constitutionally mandated; and (iii) Schneider was not required to call a
witness that Dixon could not identify. Defendants also allege that Goord and
Green Haven Superintendent Christopher Artuz ("Artuz") are entitled
to summary judgment on Dixon's due process claims because there is no evidence
they had any personal involvement in the alleged constitutional violations.
[*743] In addition, Defendants argue that Dixon's Eighth Amendment
claims cannot withstand summary judgment because, as a matter of law, the
imposition of a disciplinary sentence of 48 months in SHU for the serious
offense of assault on a prison official does not constitute cruel and unusual
punishment. Furthermore, Defendants argue that Dixon's claims concerning the
conditions of his confinement are subject to exhaustion requirements of the
Prison Litigation Reform Act of 1986 ("PLRA"), 42 U.S.C. § 1994e.
Alternately, Defendants contend that Dixon's Eighth Amendment claims should be
dismissed because there is no evidence that any of the Defendants had any
personal involvement in the alleged constitutional violations.
II.
DISCUSSION
A. SUMMARY JUDGMENT STANDARD
To
grant summary judgment, the court must determine that no genuine issue of
material fact exists and that the moving party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(c). The court is not "to weigh the
evidence and determine the truth of the matter but to determine whether there
is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Summary judgment is
inappropriate if, resolving all ambiguities and drawing all inferences against
the moving party, the dispute about a material fact is "such that a
reasonable jury could return a verdict for the nonmoving party." Id. at
248-49 (citing Adickes v. SH. Kress & Co., 398 U.S. 144, 159, 26 L. Ed. 2d
142, 90 S. Ct. 1598 (1970)). To defeat the motion, however, the non-moving
party "must do more than simply show that there is some metaphysical doubt
as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). This is
particularly true for those issues on which the non-moving party would bear the
burden of proof at trial. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S.
Ct. 2548 (1986).
Although the same standards of summary judgment apply when a pro se litigant is involved, the pro se litigant
should be given special latitude in responding to a summary judgment motion.
See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts
"read the pleadings of a pro se plaintiff liberally and interpret them 'to
raise the strongest arguments that they suggest.'")(quoting Burgos v.
Hopkins, 14 F.3d 787, 799 (2d Cir. 1994)).
B. DUE PROCESS
1.
Tampering With the Tape of the Hearing
Dixon alleges that his due
process rights were violated because the audio tape of his disciplinary hearing
was tampered with. More specifically, he accuses the Defendants of tampering
with the tape in order to obfuscate a particular answer given by Erns that
Dixon alleges is the "apex" of his defense. (Compl. PP 26, 27.) Defendants counter
that any allegation of tampering is merely conclusory. Furthermore, even
assuming that the tape was altered, Defendants argue that the recording was not
constitutionally required nor was any alleged omission prejudicial.
In his complaint, Dixon recounts the
pivotal question to have been, "Do you think
that [Dixon] was the inmate who struck you on that given day?" (Compl. P
5.) However, presumably after review of the written transcript of the hearing,
n3 Dixon [*744] concedes in his memorandum of law that the actual question
asked to Erns by Schneider was whether Erns had "any reason to believe that
Plaintiff struck you that day." (Pl.'s Mem. at 4.) All parties agree that
the answer was, "No sir, I do not." (Def.'s Mem. at 5; Dixon Dep. at
68-69.) Dixon, however, alleges that the tape was intentionally tampered with
in order to make the answer inaudible.
In Wolff v. McDonnell, 418 U.S.
539, 41 L. Ed. 2d 935, 94 S. Ct. 2963, 71 Ohio Op. 2d 336 (1974), the Supreme
Court set forth the minimum requirements of procedural due process that must be
satisfied in prison disciplinary hearings: (i) advance written notice of the
charges must be given to the inmate; (ii) the fact finder must prepare a
written statement describing the evidence relied upon and the reasons for the
determination; and (iii) inmates must be allowed to call witnesses and present
documentary evidence at the proceedings. n4 Id. at 563-567.
According to Wolff, the only written or audio record of a disciplinary
hearing that must be maintained to comply with minimal due process standards is
a written statement describing the evidence relied upon and the reasons for the
determination. Wolff 418 U.S. 539 at
564-565, 41 L. Ed. 2d 935, 94 S. Ct. 2963. In Massachusetts Correctional Inst.
v. Hill, 472 U.S. 445, 455-456, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985), the
Supreme Court noted that its standard in Wolff required only consideration of
whether there was any evidence in the record that could support the decision
reached by the prison disciplinary board. See also Gaston v. Coughlin, 249 F.3d
156, 163 (2d Cir. 2001). Therefore, the due process clause requires that a
written statement explaining the grounds for the decision be produced and that
the decision be based on some evidence in the record.
Here, Dixon does not contest
that he was provided with such a written statement setting forth the reasons
for Schneider's decision. Furthermore, Dickinson's testimony positively
identifying Dixon as the inmate who struck Erns is sufficient to support
Schneider's conclusion. Two corrections officers and one inmate also testified
that Dixon was in the vicinity of the incident, or could have been in the vicinity,
because the gate was not locked. (Renihan Aff. at 19-20, 27, 53-55, 74-75.)
Therefore, there is sufficient evidence in the record to support Schneider's
decision. n5 The Court therefore agrees with Defendants that any alleged defect
in the tape would not rise to the level of a constitutional violation.
While New York law requires that
an electronic record of a disciplinary hearing be maintained, 7 N.Y.C.R.R. §,
254(b), such a record is not constitutionally required. See Brito v. Coughlin, 1989 U.S. Dist. Lexis
9043, No. 88 Civ. 8064, 1989 WL 241718, at *2 (S.D.N.Y. July 31, 1989)
("[the due process clause] does not require, however, that a transcript be
made or given to an inmate after a disciplinary hearing ..."). Violations
of state law procedural requirements do not alone constitute a deprivation of
due process [*745] since "federal constitutional standards rather than
state law define the requirements of procedural due process." Russell v.
Coughlin, 910 F.2d 75, 78 n.1 (2d Cir. 1990). Dixon does not contest that, at
the hearing, the actual question posed to Erns concerning Dixon's possible guilt was
clearly heard by Schneider. It is the due process fairness of the hearing
itself that is constitutionally significant.
In any event, the response to the question
posed to Erns, as Dixon, in his response to summary judgment, has conceded the
question was worded, does not appear to the Court to be particularly crucial.
Erns admitted at another point during the hearing that he could not identify
the inmate who struck him. (Renihan Aff. at 10-12.) Testimony that Erns was not
able to identify Dixon as the person who struck him is far different from the
statement originally alleged by Dixon in his complaint to have been made by
Erns, that Erns did not believe it was Dixon who punched him. (Compl. PP 5, 6.)
Therefore, the Court concludes that the omission could not have prejudiced
Dixon.
2.
Hearing Officer Disregarded Erns's Answer
Dixon also claims that his due process rights were violated because
Schneider disregarded Erns's answer. As stated above, the due process clause is
satisfied as long as there is any evidence in the record that could support the
decision reached by the prison disciplinary board. Hill, 472 U.S. at 455-456. Therefore, there is no constitutional
requirement that any particular piece of evidence be relied upon by the hearing
officer.
3.
Failure to Call a Witness
Dixon next alleges that
Schneider's failure to call a witness identified by Dixon as a "Latino
officer" violated his due process rights. (Compl. PP 29, 30.) Defendants
argue that the uncontested fact that, based on Dixon's description, Schneider
was not able to identify the witness was sufficient reason for not calling him
to testify at Dixon's disciplinary hearings. In addition, Defendants argue that
the Latino officer's testimony would have been duplicative, and therefore unnecessary,
because Dixon expected the Latino officer to testify that Dixon was not at the
cite of the incident, which other inmate witnesses had already indicated in
their testimony.
The
Supreme Court held that "an inmate facing disciplinary proceedings should
be allowed to call witnesses and present documentary evidence in his defense
when permitting him to do so will not be unduly hazardous to institutional
safety or correctional goals." Wolff, 418 U.S. at 566. However, this right
is not unrestricted: "Ordinarily, the right to present evidence is basic
to a fair hearing; but the unrestricted right to call witnesses from the prison
population carries obvious potential for disruption and for interference with
the swift punishment that in individual cases may be essential to carrying out
the correctional program of the institution." Id. Furthermore, the Supreme
Court in Wolff explained that "we should not be too ready to exercise
oversight and put aside the judgment of prison administrators ... we must
balance the inmates's interest in avoiding loss of good time against the needs
of the prison, and some amount of flexibility and accommodation is
required." Id.; see also Scott
v. Kelly, 962 F.2d 145, 147 (2d Cir. 1992) (request for witnesses "can be
denied on the basis of irrelevance or lack of necessity"); Kingsley v.
Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991). Emphasizing the caution
courts should exercise before challenging disciplinary hearings, the Supreme
Court instructs, "prison officials must have the necessary discretion to
keep a prison disciplinary hearing within reasonable [*746] limits and ... to
limit access to other inmates to collect statements or to compile other
documentary evidence." Wolff, 418 U.S. at 566. Deference to prison administrators
may mean upholding a denial of a request even in situations where the
"denied witness might have provided testimony to exculpate [the
inmate]," or where the reviewing
court might have ruled differently had it been conducting the hearing. Afrika v. Selsky, 750 F. Supp. 595, 601
(S.D.N.Y. 1990) (emphasis in original).
The
Supreme Court has thus created a flexible, discretionary standard governing a
hearing officer's right to limit an inmate's ability to call witnesses at his
hearing. The question before this Court is whether the requirements of this
flexible standard were met in this case based on the uncontested facts in the
record.
Here, Dixon identified and
called seven witnesses to testify at his hearing. It is evident from the
hearing transcript, (Renihan Aff. at 45-49, 78), that Schneider went to some
effort to provide Dixon the opportunity to question the witnesses he could
identify. However, Dixon was not able to identify the "Latino
officer" by name or to locate the officer himself.
When Dixon first mentioned the
Latino officer at the hearing as someone who could testify that Dixon could not
have been present during the incident, he described him as a "Latino guy
... who does transportation ... he had a light blue shirt on." (Id. at
48-49.) In response, Schneider replied: "I don't know who that is. I don't
know of any Latinos that do transportation on a steady basis. We have Latino
Officers here ... so it could be one of maybe ten or twelve that we have
here." (Id. at 4.) Later, Schneider again indicated that he was unable to
identify this officer because "there was a large number of officers that
responded to that area." (Id. at 78.)
Given the vast discretion
afforded prison officers and the limited requirements necessitated by Wolff to
meet due process requirements, Schneider's failure to call a witness identified
by Dixon only as "Latino" did not violate Dixon's due process rights.
The Supreme Court requires that "prison officials ... explain, in a
limited manner, the reason why witnesses were not allowed to testify"
either at the time of the request or later when the decision is
challenged. Ponte v. Real, 471 U.S.
491, 497, 85 L. Ed. 2d 553, 105 S. Ct. 2192 (1985); See also Russell v. Selsky, 35 F.3d 55, 58 (2d
Cir. 1994). Schneider has given a logical reason for not providing the witness
requested by Dixon, namely that he could not identify the officer based on
Dixon's description.
In
Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1107-1108 (S.D.N.Y. 1995), where an
inmate requested a gallery list in order to identify other potential witnesses,
the court held that the prison officials were not required to produce such a
list if it were not available. Similarly, if Schneider was unable to identify
the "Latino officer" referred to by Dixon, he was not required to
identify and locate the potential witness. See Amaker v. Coombe, 2002 U.S. Dist. Lexis 5934, No. 96 Civ.
1622, 2002 WL 523388, at *10 (S.D.N.Y. March 29, 2002)("An inmate's right
to present documentary evidence in his defense does not entail an obligation on
the part of prison officials to retrieve every document that an inmate requests
for his case.")
This case can be readily distinguished from Kingsley, 937 F.2d at 30-31,
where the Second Circuit determined that an inmate's inability to identify
potential witnesses did not constitute a waiver of his right to call those
witnesses. In Kingsley, the alleged violation occurred when an inmate was
unable to produce a urine sample during a random drug test. Id. at 28. Records were specifically
available listing [*747] potential witnesses that could testify to the inmate's nervousness and
state of mind. Id. at 30-31.
Furthermore, because in Kingsley the inmate could not identify any of his
fellow inmates subjected to the random drug test, he was left with no witnesses
at all. Id.
In
this case, the record demonstrates that Schneider made efforts to secure the
testimony of seven witnesses, n6 including one officer, Officer C. Monticello
("Monticello"), who was alleged by Dixon to have been in a similar
location as the Latino officer on the day of the incident. (Renihan Aff. at
48.) Furthermore, in this case, the hearing officer did not withhold a readily
available list of Latino officers likely to have witnessed Dixon's alleged
attack on Erns. Given the nature of a disciplinary hearing, there is a real
limit to how much time and effort a hearing officer must exert to satisfy the
requirements of due process. Wolff, 418
U.S. at 566. In fact, the Second Circuit in Kingsley explicitly limited its
holding to the facts of that case:
Though
prison officials can normally insist that a prisoner identify the names of his
prospective witnesses, it was arbitrary to insist on this requirement here
where the need for the witnesses was especially compelling, their identities
were readily available to the prison officials and Kingsley's inability to
identify them by name was understandable in view of his arrival at the prison
only five days earlier.
937
F.2d at 31. Therefore, Schneider's refusal was reasonable, not arbitrary, and
thus conformed with the requirements of due process.
The
right to call witnesses would admittedly not be meaningful if prison officers
made no attempt to locate or identify witnesses that were requested. New York
State law requires a "meaningful effort" to locate witnesses.
Rodriguez v. Coughlin, 143 Misc. 2d 876, 542 N.Y.S.2d 476, 477-478 (N.Y. Sup.
Ct. 1989) ("Under these circumstances, the Hearing Officer should have
made a meaningful effort to secure the testimony of the witnesses requested by
the petitioner.") However, in the cases cited by Dixon, the inmate
provided the cell block information and/ or nickname of the potential witnesses
to facilitate locating the witness; and therefore, the state courts found that
prison officers were required to have made at least some effort to locate the
potential witnesses when "it should be relatively easy to locate the
witness requested and not unduly burdensome on the administration." People
Ex. Rel. Cooper v. Smith, 115 Misc. 2d
689, 454 N.Y.S.2d 635, 636-637 (N.Y. Sup. Ct. 1982); see also Rodriguez, 542
N.Y.S.2d at 477-478. In fact, the Cooper court explained: "We agree with
the respondent to the extent that if a requested witness is not described with
sufficient particularity to locate him or her with reasonable facility, they
should not be required to locate that witness." 454 N.Y.S.2d at 636.
The request made by Dixon to
locate a sparsely identified officer as "Latino" is not a reasonable
request that requires prison officers to act. Locating such a [*748] witness
under these circumstances does not rise to the level of a constitutional
requirement, nor would it likely rise to the level of a State law requirement.
C. EIGHTH AMENDMENT
The
Court now turns to Dixon's claims that his sentence and the conditions of his
imprisonment while in the SHU violated his Eighth Amendment right to be free
from cruel and unusual punishment.
1.
Sentencing
Dixon alleges that the sentence issued by Schneider was cruel and
unusual punishment because it was excessive. Defendants argue that Dixon's
allegations cannot withstand summary judgment. The Court agrees for two
reasons. First, the punishment complained of by Dixon in his complaint was not
actually experienced by him. In scrutinizing the challenged condition, a court
is "under an obligation to examine the actual effect of challenged
conditions upon the well-being of the prisoners." Rhodes v. Chapman, 452
U.S. 337 at 367, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (concurring opinion of
Brennan, Blackman and Stevens, JJ.) (emphasis in original); cf. Scott v. Albury, 156 F.3d 283, 286 (2d
Cir. 1998) (no right to due process is implicated in the prison context unless
the actual punishment imposed, and not the potential punishment, constitutes
the deprivation of a liberty interest). Regardless of the 48-month sentence
Schneider originally imposed, that sentence was subsequently reduced by Goord
to 36 months and by the OID to 18 months. In actuality, Dixon was in SHU for
only approximately ten months. n7 (Dixon Dep. at 101)
Second, "restraints on an inmate do not violate the amendment
unless they are totally without penological justification,' 'grossly
disproportionate,' or 'involve the unnecessary and wanton infliction of
pain.'" Smith v. Coughlin, 748 F.2d 783, 787 (2d Cir. 1984) (quoting
Rhodes v. Chapman, 452 U.S. 337, 346, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1980)).
An inmate's punishment of ten months in the SHU upon being found guilty of
assaulting a prison officer by a disciplinary hearing is penologically
justified and not grossly disproportionate; a physical assault of a prison
official is an extremely serious
offense. See Sostre v. McGinnis, 442
F.2d 178, 190-194 and n.28 (2d Cir. 1971) (length of disciplinary detention did
not constitute disproportionate punishment considering the gravity of the
offense). Therefore, Dixon's disciplinary sentence did not in and of itself
violate his constitutional rights.
2.
Normal Incidents of Confinement
Dixon's claims asserting that the normal incidents of his transfer to a
special housing unit violated his Eighth Amendment rights fail as a matter of
law. The conditions of special housing units do not per se constitute cruel and
unusual punishment in violation of the Eighth Amendment. Anderson v. Coughlin,
757 F.2d 33 (2d Cir. 1985). Prisons are permitted to transfer prisoners to
institutions with less favorable conditions without constitutional
constraint. Meachum v. Fano, 427 U.S.
215, 216, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976); Justice v. Coughlin, 941 F.
Supp. 1312 at 1326. Dixon's allegations of having been cut off from the prison
population, a computer program, religious services, legal research, medical
showers and personal property, as well as limits on food access, and other
normal incidents of SHU confinement, are not violations of the Eighth
Amendment. Therefore, [*749] Dixon's complaints concerning prison conditions
that cannot be distinguished from regular incidents of SHU confinement are
dismissed on the merits.
3.
PLRA Exhaustion Requirement
All
complaints concerning conditions of confinement are subject to the PLRA
exhaustion requirement. Defendants argue that Dixon's Eighth Amendment claims
are barred by failure to satisfy the PLRA requirement to exhaust administrative
remedies.
The
PLRA states that "no action shall be brought with respect to prison
conditions under § 1983 ... or any other Federal law, by a prisoner confined to
any jail, prison or other correctional facility until such administrative
remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "In
enacting 42 U.S.C. § 1997e(a), Congress made exhaustion mandatory ... as a
result, where an inmate fails to satisfy the exhaustion requirements, the
complaint must be dismissed." Laureano v. Pataki, 2000 U.S. Dist. Lexis
14221, No. 99 Civ. 1067, 2000 WL 1458807 at, * 1 (S.D.N.Y. Sept. 29,
2000)(citations omitted). The PLRA exhaustion requirement applies to prison
conditions concerning circumstances that "affect everyone in the prison
community--for example, food, clothing housing, recreational facilities, that
is, those things inmates of a prison share in common" Neal v. Goord, 267
F.3d 116, 117 (2d Cir. 2001). The PLRA requires exhaustion of available
administrative remedies for prison conditions even if monetary damages are not
available administratively. Booth v. Churner, 532 U.S. 731, 740-741, 149 L. Ed.
2d 958, 121 S. Ct. 1819 (2001).
In
New York, the relevant administrative procedure is the Inmate Grievance
Program. See N.Y. Correction Law § 139 (McKinney 1987); Matter of Patterson v.
Smith, 53 N.Y.2d 98, 101-102, 440 N.Y.S.2d 600, 423 N.E.2d 23 (1981). New York
inmates can file internal grievances with the Inmate Grievance Review Committee
("IGRC"). When an inmate grievance is denied by the IGRC, the inmate
may appeal to the superintendent of the facility and then may appeal from the
superintendent's determination to the Central Office Review Committee
("CORC"). 7 N.Y.C.R.R. § 701.7.
Dixon's argument that the exhaustion requirement does not pertain to his
claims because the internal grievance process does not provide for monetary
damages has been rejected by the Supreme Court in Porter v. Nussle, 534 U.S.
516, 122 S. Ct. 983, 988, 152 L. Ed. 2d 12 (2002) (citing Booth v. Churner, 532
U.S. 731, 741, 149 L. Ed. 2d 958, 121 S. Ct. 1819 (2001)). Dixon's alternate
argument that Nussle does not apply because his complaint was submitted before
the decision was issued, is similarly unavailing. It is well-settled that when
a rule of federal law is established by the Supreme Court, that rule is controlling
and must be given full retroactive effect in all pending cases. See Harper v.
Virginia Dept. of Taxation, 509 U.S. 86, 90, 125 L. Ed. 2d 74, 113 S. Ct. 2510
(1993).
The
exhaustion requirement applies, however, only where a remedy is available in
the administrative proceedings. Marvin
v. Goord, 255 F.3d 40, 43 (2d Cir. 2001)(citing Howell v. I.N.S., 72 F.3d 288,
291 (2d Cir. 1995). The exhaustion requirement is satisfied by resolution of
the matter, i.e., an inmate is not required to continue to complain after his
grievances have been addressed. See
Marvin, 255 F.3d at 43 n. 3; see also Booth, 532 U.S. at 736 n. 4 ("Without the possibility of
some relief, the administrative officers would presumably have no authority to
act on the subject of the complaint, leaving the inmate with nothing to
exhaust.")
[*750] Here, Dixon asserts that his complaints were eventually
addressed, through the grievance system, or otherwise, albeit in an untimely
manner. n8 (Pl.'s Mem. at 6; Dixon Aff. Ex. B.) Dixon explains that: "The
grievances, were usually resolved with untimely action, and in the case of the
secondhand smoke, the plaintiff was moved to a non-smoking cell." (Pl.'s
Mem. at 6.) Based on Dixon's submissions, it is not clear whether all his grievances
were resolved or, if not, which grievances were not resolved. For any grievances that were not resolved,
the PLRA exhaustion requirement pertains, and any such grievances asserted here
would have to be dismissed for failure to exhaust.
With
regard to Dixon's claim concerning a physical attack he suffered, the Supreme
Court has recently declared, reversing the Second Circuit opinion in Nussle v.
Willette, 224 F.3d 95, 106 (2d Cir. 2000), that claims of every sort relating
to conditions and occurrences of prison life-including individual claims of
assault or excessive force-must be exhausted before an action can be commenced
in this Court pursuant to 42 U.S.C. § 1983. Porter, 534 U.S. 516, 122 S. Ct. at
986-989; see also Lawrence v. Goord,
238 F.3d 182, 185 (2d Cir. 2001) (retaliation claims need not be exhausted),
vacated, 122 S. Ct. 1200 (2002).
Therefore, Dixon must exhaust through the internal grievance system his claim
concerning a physical attack he allegedly suffered while in confinement.
Here, there is no evidence that Dixon filed a grievance report
concerning the physical attack he allegedly suffered on August 14, 2000.
(Bellamy Aff. PP 10, 11.) Rather, the only grievance report filed by Dixon referring
to the incident of the physical attack requests that he be moved to a higher
level cell, specifically with a non-smoker, after presumably being moved in
response to the fight with his cell-mate. Dixon made no complaints against any
officers for failure to prevent the incident. (Dixon Aff. Ex. B.) This
grievance report did not exhaust administrative remedies. See Booth 532 U.S. at 740-741 (as long as a
grievance tribunal has authority to take some responsive action, the PLRA
requires administrative exhaustion before a § 1983 claim can be filed).
Therefore, Dixon's complaint concerning the physical attack, as well as all
other complaints not addressed through the grievance system, or otherwise, must
be dismissed without prejudice for failure to exhaust.
With respect to grievances that were resolved, Defendants' indication
that CORC's records demonstrate that Dixon failed to submit any such appeal,
(Bellamy Aff. PP 10, 11, and Ex. C, D), is not relevant. If a grievance has
been satisfied, a review board would not have the power to act upon the
complaint; therefore, Dixon need not have exhausted the administrative process
for complaints he concedes were already redressed.
Similarly, Dixon cannot recover for grievances that were redressed by
the internal grievance process. The PLRA was intended to reduce the number of
claims brought to federal court by forcing prisoners to seek redress in
internal grievance procedures. The legislative history indicates that the
purposes behind the PLRA [*751] were to reduce what were perceived as frivolous
prisoner petitions as well as the caseload of the federal courts. See, e.g.,
141 Cong. Rec. § 7498-01, § 7526 (1995) (statement of Senator Kyl that overall
purpose of PLRA is to deter and reduce the numbers of "frivolous inmate
lawsuits ... clogging the courts and draining precious judicial
resources")(quoted in Diezcabeza v. Lynch, 75 F. Supp. 2d 250, 255 (2d
Cir. 1999). Allowing Dixon to bring his claims here after they were already
redressed internally, would negate the purpose of the PLRA and would be
unnecessarily duplicative.
Accordingly, Dixon's claims are reduced to damages for injuries suffered
before his grievances were addressed. According to the record, Dixon filed
grievances concerning repeated exposure to second-hand smoke for being housed
with a smoking cell-mate, untimely provision of notary services, denial of
medical attention, and denial of access to his property. (Dixon Aff. Ex. B).
Defendants have not alleged that these Eighth Amendments claims are
insufficient as a matter of law and will therefore not be addressed on the
merits. n9
4.
Personal Involvement by Defendants
The
Defendants also argue that Dixon's Eighth Amendment claims should be dismissed
because there is no evidence that any of the Defendants were personally
involved in the alleged violations.
It
is clearly settled that "in order to establish a violation of his Eighth
Amendment rights, an inmate must show (1) a deprivation that 'is objectively,
sufficiently serious' that he was denied 'the minimal civilized measure of
life's necessities,' and (2) a 'sufficiently culpable state of mind' on the
part of the defendant official, such as deliberate indifference to inmate
health or safety." Gaston v. Coughlin, 249 F.3d at 164 (quoting Farmer v.
Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811, (1994)). A
prison official may be found to have had a sufficiently culpable state of mind
only if he (i) participated directly in the alleged event, (ii) learned of the
inmate's complaint and failed to remedy it, (iii) created or permitted a policy
that harmed the inmate, or (iv) acted with gross negligence in managing [*752]
subordinates. Gaston, 249 F.3d at 164;
see also Williams v. Smith, 781 F.2d
319, 323 (2d Cir. 1986); Johnson v. Newburgh, 239 F.3d 246, 254 (2d Cir. 2001);
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Personal liability cannot
be imposed on a state official under a theory of respondeat superior. Monell v. Dep't of Soc. Serv., 436 U.S. 658,
694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Blyden v. Mancusi, 186 F.3d 252,
264 (2d Cir. 1999).
Here, the Defendants did not work at the facility at which Dixon
suffered the alleged unconstitutional conditions he lists in his complaint. n10
Dixon does not assert in his complaint, nor is there any evidence in the
record, that Defendants were aware of these conditions or that they were
responsible for addressing these conditions. Without knowledge of or
responsibility for the conditions, Defendants cannot be held personally liable
for alleged violations of the Eighth Amendment. See Gaston 249 F.3d at 166 (summary judgment is appropriate where
prison guards were not assigned to the facility in which alleged conditions occurred, and where
plaintiff does not assert knowledge of the conditions).
The only specific allegation that Dixon makes concerning the Defendants' culpability for the conditions of his SHU confinement is that, by reason of the sentence Schneider issued at the disciplinary hearings, he was made to suffer an unconstitutional sentence and unconstitutional prison conditions. (Compl. P 32, 33.) As discussed above, the sentence issued by Schneider did not itself constitute a violation of Dixon's Eighth Amendment rights, nor are conditions of more secure prison facilities per se unconstitutional. Dixon also states that the Defendants "were grossly negligent in managing subordinates who caused the incident." (Pl.'s Mem. at 13.) Again, however, Dixon refers to the Defendants actions at the time of the hearing at Green Haven and not to their culpability for the conditions at Upstate: "Meaning, if Defendant Goord would have trained his employees efficiently, the Plaintiff would not have endured the specific conditions pertaining to his SHU sentence." n11 (Id.) The Defendants are not responsible for the conditions at SHU because of any alleged impropriety at the hearing. Therefore, Dixon's Eighth Amendment claims must be dismissed because the facts and allegations do not support the requisite personal involvement by Defendants in the prison conditions Dixon alleges constituted the violations.
III. ORDER
For the reasons stated above, it is hereby
ORDERED that Defendants' motion for summary judgment is granted.
The
Clerk of Court is directed to close this case.
SO ORDERED.
DATED: New York, New York
October 23, 2002
Victor Marrero
U.S.D.J.
FOOTNOTES:
n1 The factual summary that follows derives
primarily from Dixon's complaint ("Compl."), Memorandum in Opposition
to Summary Judgment ("Pl.'s Mem."), and deposition ("Dixon
Dep."), as well as from the Memorandum of Law in Support of Defendants'
Motion for Summary Judgment, dated June 14, 2002 ("Def.'s Mem.") and
accompanying exhibits and affidavits attached thereto. Except where
specifically referenced, no further citation to these sources will be made.
n2 Dixon's Deposition is attached as Exhibit
A to the Affirmation of Michael E. Peeples in Support of Defendants' Motion for
Summary Judgment, dated June 14, 2002 ("Dixon Dep.").
n3 The transcript is submitted as Exhibit A
to the Affidavit of Sandra N. Renihan in Support of Defendants' Motion for
Summary Judgment, dated June 13, 2002 ("Renihan Aff.").
n4 It is conceded, for the purposes of this
discussion, that the approximately ten months Dixon spent in SHU constituted
the denial of a liberty interest sufficient to entitle him to the procedural
safeguards outlined in Wolff. See
Sandin v. Conner, 515 U.S. 472, 483, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995) (the deprivation of a
state-created liberty interest does not rise to the level of a constitutional
violation unless the punishment imposed amounts to an "atypical and
significant hardship on the inmate in relation to the ordinary incidents of
prison life"); Welch v. Bartlett, 196 F.3d 389 (2d Cir. 1999) (question of
fact remains as to whether ninety days in SHU is atypical and significant).
n5 The record reflects that Schneider relied
on this evidence, in particular, the testimony of Dickinson. (Renihan Aff. at
81.)
n6 Though Monticello was not available at
some point during the hearing, Schneider made sure he would be called to
testify upon his return: "We're going to call Monticello. He's just not
available today, okay? Hopefully, he'll be returning tomorrow. If not, I will
make an attempt to reach him at his home and put him on the speaker phone. I'd
rather have him in person, but ..." (Renihan Aff. at 48, 71-72.);
compare Fox v. Coughlin, 893 F.2d
475, 477-478 (2d Cir. 1990) (defendant who failed to call requested officer
because he was away from the prison that day was held not to be personally
liable on qualified immunity grounds, but in the future such a failure would be
considered a constitutional violation).
n7 Dixon's reduced sentence was later
suspended when Dixon successfully filed a CPLR Article 78 proceeding annulling
the prior hearing and was found not guilty at the subsequent disciplinary hearing.
(Dixon Aff. Ex. A-6, A-14.)
n8 Dixon's record of grievances and letters
filed, provided in Dixon's Affidavit in Support of Summary Judgment, at Ex. B,
demonstrates a record of complaints that were decided in Dixon's favor with
regard to exposure to second-hand smoke, access to a notary and access to his
property. The Court notes that Dixon's requests for a particular type of soap
to treat his eczema were denied, but since Dixon does not include this
grievance in his complaint, it is not considered by this Court to be relevant
here.
n9
While not addressing the merits of these Eight Amendment claims, the Court
notes that Eighth Amendment requires prisons to "ensure that inmates
receive adequate food, clothing, shelter and medical care, and ... 'take
reasonable measures to guarantee the safety of the inmates.'" Farmer v.
Brennan, 511 U.S. 825, 832, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994)(quoting
Hudson v. Palmer, 468 U.S. 517, 526-27, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984)).
In order to prevail on an Eight
Amendment claim, an inmate must demonstrate that officials acted with
"deliberate indifference to one of these basic human needs." Justice
v. Coughlin, 941 F. Supp. 1312, 1325 (N.D.N.Y. 1996) (citing Wilson v. Seiter,
501 U.S. 294, 303, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991)); Helling v.
McKinney, 509 U.S. 25, 125 L. Ed. 2d 22, 113 S. Ct. 2475 (1993) (Eight
Amendment claim requires proof of both subjective elements). Furthermore, in a
complaint concerning medical care, the inmate must show that the condition
"may produce death, degeneration, or extreme pain." Hathaway v.
Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Nance v. Kelly, 912 F.2d 605,
607 (2d Cir. 1990)) (Pratt J., dissenting). Therefore, Dixon would be
hard-pressed to demonstrate that the delays he experienced in having his
complaints addressed and ultimately satisfied meet the high standards for
constituting cruel and unusual punishment. See Bryant v. Maffucci, 923 F.2d 979, 983-85 (2d Cir. 1991) (administrative
delay in scheduling a medical procedure caused by negligence does not
constitute deliberate indifference); Williams v. Keane, 940 F. Supp. 566,
571-572 (S.D.N.Y. 1996) (delay in medical treatment does not and cannot
implicate plaintiff's procedural due process rights where, as here, plaintiff
pursued the prison grievance procedure and received two prompt responses scheduling
two orthopedic fittings).
n10 Defendants Schneider and Artuz worked at
Green Haven, and Goord is Commissioner of DOCS. None of Dixon's grievances
concerning prison conditions were filed with DOCS. (Bellamy Aff. PP 11, 12.)
n11 The Court understands this statement by
Dixon to mean that if Goord had properly trained his employees, the hearing
would have been conducted properly and Dixon's sentence would have been proper.
Thereby, Dixon would not have had to endure the conditions of SHU confinement,
both the normal incidents of SHU confinement listed in his complaint and the
abuses he suffered.
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