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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
NEW YORK
ANGEL TORRES,
Plaintiff,
-against-
WILLIAM P. MAZZUCA,
Superintendent, at Fishkill Correctional Facility, et
al.,
Defendants.
02 Civ. 2152 (VM)
246 F. Supp. 2d 334
February 25, 2003,
Decided
February 26, 2003, Filed
DECISION AND ORDER
VICTOR MARRERO, United
States District Judge.
Plaintiff
Angel Torres ("Torres"), proceeding pro se, filed this action under 42
U.S.C. § 1983 alleging violations of his constitutional rights under the Eighth
Amendment and the Due Process Clause of the Fourteenth Amendment of the United
States Constitution. Defendant B. Depasquale ("Depasquale") answered
the complaint. Defendants William Mazzuca ("Mazzuca"), Thomas Eagen
("Eagen"), Arlen Pelc ("Pelc"), John Rourke
("Rourke") and N. Bezio ("Bezio") filed a motion to dismiss
the complaint pursuant to Federal Rules of Civil Procedure ("Fed. R. Civ.
P.") 12(b)(6). On April 18, 2002, Torres identified defendant John Doe 1
as Lieutenant Kruger ("Kruger") but has not served that defendant. For
the reasons discussed below, the motion is GRANTED in its entirety.
I. BACKGROUND
According
to the Complaint, on or about June 10, 2001, while Torres was housed in a
Special Housing Unit ("SHU") at Fishkill Correctional Facility
("Fishkill"), he translated a request to Depasquale, a corrections
officer at Fishkill, for toilet paper made by the inmate housed in the cell
adjoining his who did not speak English. In response, Depasquale swore and
denied the request, telling Torres to mind his own business and instructing him
to inform the other inmate to "wash up in the toilet or use his
washcloth." (See Amended Complaint, dated February 15, 2002 (the
"Compl."), PP 20-22.) Depasquale then left. Shortly thereafter,
Torres reported this incident to the Sergeant on duty, who assured Torres that
Depasquale would deliver toilet paper. When Depasquale delivered toilet paper
ten or fifteen minutes later, he said: "Torres don't forget you snitched
on me to the Sergeant. I am gonna be here on June 25th 2001 [the day Torres was
to be released from SHU] and you're gonna get it, I promise." (Compl. P
25.) Torres did not grieve or otherwise inform prison officials of this threat.
The Complaint further alleges
that on June 25, 2001, Depasquale again threatened Torres by stating "Torres,
I'm. here and I'm gonna get you!" (Id. at P 26.) Shortly thereafter,
Depasquale, along with two other lieutenants, appeared to release Torres from
SHU confinement. Torres alleges that Depasquale handcuffed him and "pat
frisked" him roughly, including intentionally grabbing him in the groin
area. (Id. at P 27.) When Torres objected to Depasquale's "improper pat
frisk," Depasquale slammed his head against the wall. (Id.)
Once the
officers waist chained and handcuffed Torres, Torres alleges that they took him
to the "strip room" where Depasquale punched Torres in the face,
causing him to fall to the ground unconscious. (Id. at PP 28, 29.) Torres
regained consciousness when he was lifted from the ground, and noticed a pool
of blood beneath him. The Court will refer to these alleged events as the
"Incident".
Torres was then taken to the
hospital and received 19 stitches around his mouth area. Torres was also
examined by a dentist who diagnosed "apical root fractures" and had
to pull two of Torres' front teeth. (Id. at PP 30, 31.) The Dentist opined that
Torres would never recover from the nerve damage he suffered. (Id.) Torres
[*337] attached to the Complaint certain medical records reflecting this
treatment. (See id. Exhs. I, P.) Upon his return from his medical appointments, Torres
was again placed in SHU confinement.
On the same
day as the Incident, Depasquale filed an Inmate Misbehavior Report charging
Torres with assaulting staff, violent conduct, disobeying a direct order, interference
with an employee, and violation of a search and frisk procedure. (See id. Exh.
J (the "Misbehavior Report").) The Misbehavior Report sets forth a
very different account of the Incident from Torres's, essentially stating that
because of Torres's aggressive and disruptive behavior, Depasquale punched him
in self-defense. At the June 29, 2001 hearing held in response to Depasquale's
charges, Torres argued that the Misbehavior Report was a fabrication. Mazzuca,
Superintendent of Fishkill, presided over the hearing. The hearing was
adjourned to review evidence and to arrange for Torres's witnesses to be
summoned. The hearing was never reconvened. Instead, on July 7, 2001, Torres
was released from SHU. Torres filed a request for the hearing tape, the Misbehavior
Report and disposition, as well as pictures that were taken of him after the
Incident is alleged to have occurred. He was informed by letter from
corrections officer T. L. Favro, dated October 18, 2001, that no file existed.
(See id. Exh. L.)
On June 26, 2001, Torres
filed a grievance regarding the Incident. Receiving no response, he submitted a
second grievance on July 4, 2001. Again receiving no response, he filed a third
grievance on July 17, 2001.
Torres
finally was interviewed by Kruger, a correctional lieutenant at Auburn
Correctional Facility, on August 13, 2001. According to Torres, Kruger
submitted a report stating that Depasquale "denies in writing that he
assaulted the grievant" and apparently did not interview any witness or review
any video surveillance tapes that might exist. (Id. at P 46.) Based on Kruger's
findings, a report was issued denying Torres's grievance (the "Kruger
Report"). (Id. Exh. E.) Torres appealed the Kruger Report to Eagen,
Director of the Inmate Grievance Program. Bezio, another corrections officer,
was then assigned to conduct a second investigation. On December 19, 2001, when
Bezio appeared to interview Torres, Torres was distressed to find that Bezio
was not able to interview Depasquale and did not have any videotapes to review.
Bezio's investigation affirmed the Kruger Report and the appeal was denied.
(Id. Exh. H.)
Torres
wrote to Commissioner Goord ("Goord"), the Commissioner of the
Department of Correctional Services, explaining the Incident, the existence of
the video and audio tapes recording the Incident, the denial of his grievances
and requested assistance in prosecuting his grievance. In response, he received
a letter from Lucien J. Leclaire, Jr. ("Leclaire"), Deputy Commissioner
of the Department of Correctional Services, dated December 5, 2001 (Id. Exh.
O.) Leclaire informed Torres that the Incident had been recorded as an
"unusual incident (assault on staff)." In addition, Leclaire pointed
to the Doe Report investigation, and indicated that corrections officer Pelc
had reviewed the video tape of Torres's escort from the gallery to the strip
frisk area and found nothing to support Torres's claims. Further, Leclaire
stated that the Misbehavior Report charges were dismissed because the disciplinary
hearing was not completed in a timely manner. Thus, Leclaire found no factual
support in the grievance record for Torres's assault claim.
In addition
to the physical injuries he suffered, Torres argues that he was deprived [*338]
of due process because the prison investigations into his grievances were
incomplete and did not address the severity of his injuries. Torres asserts that Mazzuca failed to protect him from
the assault by Depasquale and then failed to ensure that a full investigation
be conducted, thus violating the Eighth and Fourteenth Amendments. Torres
claims that corrections officers Bezio, Doe, Pelc and Rourke failed to
investigate or prepare fair reports. Torres also asserts that Rourke conducted
an unfair Hearing by excluding witnesses and failing to issue a written
disposition. Torres's claim against Depasquale for cruel and unusual punishment
in violation of the Eighth Amendment are not put at issue by the motion to
dismiss now before the Court.
II. DISCUSSION
A. STANDARD OF REVIEW
A district court may grant a motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(6) only if it appears beyond a doubt that the non-moving party
could prove no set of facts that would entitle it to relief. See Hishon v. King & Spalding, 467 U.S. 69,
73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Valmonte v. Bane, 18 F.3d 992, 998
(2d Cir. 1994). On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a
Court accepts all well-pleaded factual assertions in the complaint as true and
draws all reasonable inferences in favor of the plaintiff. See Hishon, 467 U.S. at 73; McGinty v. State of
New York, 193 F.3d 64, 68 (2d Cir. 1999).
When considering motions to dismiss the claim of plaintiffs
proceeding pro se, courts are instructed to construe the pleadings liberally.
See, e.g., Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594
(1972); Weinstein v. Albright, 261 F.3d 127, 131-132 (2d Cir. 2001); Flaherty
v. Lang, 199 F.3d 607, 612 (2d Cir. 1999). This is especially true when dealing
with civil rights complaints. See, e.g.,
Herschaft v. NY Board of Elections, 234 F.3d 1262 (2d Cir. 2000).
However, complaints "must contain specific allegations of fact which
indicate a deprivation of constitutional rights; allegations which are nothing
more than broad, simple and conclusory statements are insufficient to state a
claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d
Cir. 1987).
The Court does not consider matters outside of the pleadings.
To do so would convert the motion into one for summary judgment, which, at this
stage of the proceedings, the Court declines to do. See Friedl v. City of New York, 210 F.3d 79,
83-84 (2d Cir. 2000). Nevertheless, the district court's consideration of
documents attached to, or incorporated by reference in, the complaint, and
matters of which judicial notice may be taken, would not convert the motion to
dismiss into one for summary judgment. See
Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d
Cir. 1999).
B. EIGHTH AMENDMENT CLAIM
AGAINST MAZZUCA
Defendants argue that Mazzuca was not personally involved in the
alleged violation of Torres's Eighth Amendment rights and therefore the claim
against him must be dismissed. Torres argues that the motion is
"premature."
To establish a cognizable claim under 42 U.S.C. § 1983, a
plaintiff must allege conduct under color of state law that deprives him of
rights secured by the Constitution or laws of the United States. See,
e.g., Katz v. Klehammer, 902 F.2d 204,
206 (2d Cir. 1987). To survive a motion to dismiss, plaintiff must allege
that the defendants were directly involved in the alleged violations of
plaintiff's constitutional [*339] rights. See Gill v. Mooney, 824 F.2d 192, 196
(2d Cir. 1987). Because Torres does not assert facts that indicate that Mazzuca
was personally involved with the Incident alleged to have violated Torres's
Eighth Amendment rights, the claim against Mazzuca must be dismissed.
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, 128 L. Ed. 2d 811, 114 S.
Ct. 1970 (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 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).
In Colon, the plaintiff claimed that Coughlin, then Commissioner
of the Department of Correctional Services ("DOCS"), was grossly
negligent in training and supervising the corrections officers under his management. 58 F.3d at 873. The plaintiff's verified
complaint, however, set forth no facts indicating that Colon had any knowledge
that would support a claim that Coughlin either knew of or should have known of
the wrongs or risks alleged by Colon. See
id. at 873-874. Accordingly, the claim was dismissed as to Coughlin.
Similarly, in Gaston, the Circuit Court held that dismissal based on lack of
personal involvement was inappropriate because the defendant prison officials
were alleged to have had actual knowledge of the alleged unconstitutional
prison conditions. 249 F.3d at 166. In
both cases, the importance of pleading actual knowledge or direct involvement
on the part of the defendant in order to hold the defendant liable for an
Eighth Amendment violation is stressed.
Torres
claims that Mazzuca failed to protect him from the assault, thus violating the
Eighth Amendment. The Complaint in this action is well organized, setting forth
Torres's factual allegations and legal claims in a coherent manner.
Nevertheless, it contains no facts that show Mazzuca played a part in the
Incident or that he had knowledge of, or reason to have knowledge of, any
danger to Torres prior to the Incident that could place particular
responsibility on Mazzuca for protecting Torres from the Incident. As such, it
does not appear that Mazzuca was aware of any specific risk to Torres, which he
ignored. Nor do the factual allegations in the Complaint suggest a custom or
practice at Fishkill to deprive inmates of their rights of which Mazzuca was
aware or personally responsible for. In fact, the only mention of Mazzuca in
connection to the Eighth Amendment claim against him in the Complaint is a
broad allegation that Mazzuca had a duty to protect Torres. Therefore, based only
on the fact that the Incident occurred, Torres contends that Mazzuca violated
Torres's Eighth Amendment rights by failing to protect him. Thus, any personal
involvement of Mazzuca in the [*340] Incident that is the basis for Torres's Eighth Amendment claim would
invoke respondeat superior and therefore is not cognizable. Accordingly, the
Court finds that, as it is pleaded, the Complaint does not allege any personal
involvement in the Incident by Mazzuca, and therefore, Torres does not state an
Eighth Amendment claim against Mazzuca.
C. DUE PROCESS
Torress
alleges two administrative processes that resulted in the denial of his due
process rights. First, Torres alleges that his Fourteenth Amendment due process
rights were violated by Rourke's failure to conduct a proper hearing and
investigation with respect to the charges in the Misbehavior Report filed by
Depasquale. Second, Torres alleges that Mazzuca, Eagen, Pelc, Kruger and Bezio violated
his due process rights by failing to properly investigate Torres's grievances
concerning the Incident. Torres's due process claims must be dismissed because
he has not been deprived of a protected liberty interest that would afford him
the constitutional right to more process than he was given.
It is well settled that "a
prisoner asserting a § 1983 claim for denial of due process at a disciplinary
hearing must first 'identify a liberty interest protected by the Due Process
Clause of which he was deprived.'" Williams v. Goord, 111 F. Supp. 2d 280,
288 (S.D.N.Y. 2000) (internal citations omitted). The deprivation of a
state-created liberty interest does not rise to the level of a constitutional
violation requiring due process before its imposition unless the punishment
imposed amounts to an [*341] "atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life." Sandin v.
Conner, 515 U.S. 472, 483, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995); see
also Welch v. Bartlett, 196 F.3d 389
(2d Cir. 1999). Furthermore, the prisoner must establish that "the state
has granted its inmates, by regulation or by statute, a protected liberty
interest in remaining free from that confinement or restraint." Frazier v.
Coughlin, 81 F.3d 313, 317 (2d Cir. 1996). Only if the prisoner meets these two
elements, the court then addresses "'whether the deprivation of that
liberty interest occurred without due process of law.'" Sealey v. Giltner,
116 F.3d 47, 51 (2d Cir. 1997) (quoting Bedoya v. Couglin, 91 F.3d 349, 351-52
(2d Cir. 1996)). After Sandin, a prisoner has no actionable due process claim
if other prisoners typically experience approximately the same deprivation as a
result of the "ordinary administration of the prison." Williams, 111
F. Supp. 2d at 288 (quoting Welch, 196 F.3d at 393.) "Due process claims
are reserved instead for those prisoners who endure hardships that are
'substantially more grave' than those hardships that prisoners would ordinarily
experience as members of the general population." Id. (internal citations
omitted).
In this
case, based on Torres's Complaint, upon his return from the doctor and dentist
after the Incident on June 25, 2001, Torres was placed in SHU confinement and
was released on July 7, 2001. (See Compl. PP 34-37.) The reason for his release
was allegedly not disclosed to Torres, but appears to have been due to the fact
that the hearing was not completed in a timely manner, and therefore all
charges were dismissed. (See Compl. Exh. O.) As such, Torres admittedly spent
approximately 12 days in SHU because of the Misbehavior Report filed by
Depasquale. Torres does not allege that the SHU confinement was other than
ordinary solitary confinement.
Twelve days
in SHU confinement pending a hearing based on a prison officer's charges and its
outcome, are not "atypical and significant." In fact, the conditions of ordinary SHU confinement, at
least for short intervals, may be imposed on prison inmates in the regular
course of prison life, not connected with disciplinary punishment. See Sandin, 515 U.S. at 486 ("disciplinary
segregation, with insignificant exceptions, mirrored those conditions imposed
upon inmates in administrative segregation and protective custody.") In
this case, the SHU confinement appears to have been interim confinement pending
the disciplinary hearing on charges which were then thrown out. The law in the Second Circuit is clear that
such short-term confinement pending a disciplinary hearing is administrative,
not punitive. See Bolden v. Alston,
810 F.2d 353, 357 n.3 (2d Cir. 1987); Garrido v. Caughlin, 716 F. Supp. 98, 102
(S.D.N.Y. 1989). Therefore, in accordance with the holding in Sandin, Torres's
twelve day SHU confinement did not "exceed similar, but totally
discretionary, confinement in either duration of degree of restriction"
creating an "atypical and significant hardship." 515 U.S. at 486.
While there is no bright-line test in terms of the duration of SHU confinement that meets the "atypical and significant" standard, see Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999), the Second Circuit has held that SHU confinements under 101 days do not necessitate detailed factual records. See Colon v. Howard, 215 F.3d 227, 232 (2d Cir. 2000). Many district courts in this Circuit have found that periods much longer than the twelve days of ordinary SHU confinement alleged here could not meet the Sandin burden. See, e.g., Williams, 111 F. Supp. 2d at 289 (75-day confinement was not "onerous" or an "atypical and significant" burden under Sandin); Alvarado v. Kerrigan, 152 F. Supp. 2d 350, 355 (S.D.N.Y. 2001) (plaintiff's SHU confinement for 93 days was not found to be an "atypical and significant" deprivation). In fact, the Second Circuit recently noted that the longest confinement in normal SHU conditions ruled constitutional was 101 days. Howard, 215 F.3d 227, 231 (citing Sealy v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999)). Furthermore, it appears that the Second Circuit's post-Sandin decisions are unanimous that keeplock confinements of sixty days or less in New York prisons are not "atypical hardship." See, e.g., Frazier, 81 F.3d at 317-18 (neither twelve-day confinement in SHU nor eleven-day confinement in Close Supervision Unit was the kind of atypical, significant deprivation in which New York might conceivably create a liberty interest); Harris v. Keane, 962 F. Supp. 397, 404 (S.D.N.Y. 1997) (23 days SHU); Duncan v. Keane, 1996 U.S. Dist. Lexis 21902, No. 93 Civ. 6026, 1996 WL 511573, at *2 (S.D.N.Y. Aug. 22, 1996) (58 days keeplock); Camacho v. Keane, 1996 U.S. Dist. Lexis 5503, No. 95 Civ. 0182, 1996 WL 204483, at *2 (S.D.N.Y. Apr. 25, 1996) (40 days keeplock); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1108 (S.D.N.Y. 1995) (60 days SHU).
Torres does
not even allege in his Complaint that such a confinement was atypical and
significant; he focuses only on the injustices of the disciplinary hearing
itself. Despite such alleged injustices, however, Torres was released from the
charges after twelve days in SHU without receiving any punishment. Since Torres
claims no protected liberty interest that he was deprived of because of the
allegedly inadequate hearing, he can not claim due process violations at the
hearing. Accordingly, Torres's claim against Rourke for due process violations
at Torres's disciplinary hearing fails as a matter of law and is dismissed.
Next, Torres alleges that his due process rights
were violated because a proper investigation into the Incident, including
interviewing his named witnesses, and reviewing [*342] the videotape, audiotape
and other documents that Torres alleges would clearly demonstrate Depasquale's
inappropriate behavior on June 25,
2001, was never conducted in response to Torres's submission of a number of
grievances concerning the Incident.
To state any claim under § 1983, "a plaintiff must allege
the violation of a right secured by the Constitution and laws of the United
States ...." West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct.
2250 (1988) As has been discussed above, in order for the due process
requirements of the Fourteenth Amendment to apply, Torres must have been
deprived of a protected liberty interest. See
White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1061-62 (2d Cir.
1993) ("In order to succeed on a claim of deprivation of procedural due
process, a plaintiff must establish that state action deprived him of a
protected property or liberty interest.") For a state-created liberty
interest to be protected, its deprivation must amount to an "atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison
life." Sandin, 515 U.S. at 483.
The corrections officers'
failure to properly address Torres's grievances by conducting a thorough
investigation to his satisfaction does not create a cause of action for denial
of due process because Torres was not deprived of a protected liberty interest. Prison grievance procedures do not confer
any substantive right upon an inmate requiring the procedural protections
envisioned by the Fourteenth Amendment. See
Mahotep v. Deluca, 3 F. Supp. 2d 385, 390 n.3 (W.D.N.Y. 1998); Buckley
v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); Adams v. Rice, 40 F.3d 72, 75
(4th Cir. 1995); cf. Harris, 962 F.
Supp. at 406 (prison regulations requiring that a grievance disposition be
returned within 15 days do not create an interest to which due process rights
attach). Moreover, Torres admits that he received various letters in response
to his grievances and that prison officers were sent to interview him to
investigate the Incident. The Kruger Report
also indicates that Depasquale was questioned but denied Torres's version of
the Incident. Torres complains that such responses were not adequate in that
his witnesses were not interviewed and various forms of evidence that he
alleges exists was not examined. However, the breadth of any investigation
remains in the discretion of the officers conducting the investigation. n1
Torres does not have a protected liberty interest in having his grievances
investigated at the level of thoroughness that he desires, and therefore he can
not assert a due process claim as to such failures. Under the applicable
standard in Sandin, the failure to conduct an extensive investigation into
Torres's charges does not impose an "atypical and significant
hardship" upon Torres sufficient to create a protected liberty interest.
Accordingly, Torres's due process claims against Mazzuca, Eagen, Pelc, Kruger
and Bezio concerning the failure to fully investigate his grievances are
dismissed.
[*343] III. ORDER
For the foregoing reasons, it is hereby
ORDERED that the motion
to dismiss the Complaint as to Defendants Mazzuca, Rourke, Bezio, Kruger,
Eagen, and Pelc is granted.
SO ORDERED.
Dated: New York, New York
25 February 2003
Victor Marrero
U.S.D.J.
FOOTNOTE:
n1
Torres does have the right appeal determinations with respect to a grievance,
as he did. Furthermore, Torres ultimately has the right to have such
determinations reviewed by this Court if they allege violations of his
constitutional rights and were not satisfactorily redressed by the prison
grievance system. Therefore, Torres's Complaint concerning the Incident
properly comes to this Court for review, but any alleged inadequacies or
unfavorable decisions concerning the prison's internal grievance process do not
give Torres the right, as a matter of course, to have the Court consider not
only the Eighth Amendment charge which was the subject of his grievance, but
also due process allegations based on
failures in the grievance system.