Flood v. CappelliFlood v. Cappelli
- Reporters:
- ,
- Before:
- Kenneth M. Karas
Appearances:
Joseph V. Flood
Goshen, NY
Pro Se Plaintiff
Karen D. Edelman-Reyes, Esq.
Orange County District Attorney’s Office
Goshen, NY
Counsel for Defendants
KENNETH M. KARAS, United States District Judge:
Joseph V. Flood (“Plaintiff”), currently incarcerated at Orange County Jail (“OCJ”), brings this Action under
A. Factual Background
The following facts are drawn from Plaintiff’s Complaint, and a letter Plaintiff submitted in opposition to Defendants’ Motion, (see Compl.; Letter from Plaintiff to Court (Nov. 26, 2018) (“Pl.’s Letter”) (Dkt. No. 24)), and are taken as true for the purpose of resolving the instant Motion.1
Plaintiff alleges that on April 1, 2018, at 9:15 a.m., he was sexually assaulted outside the door to his cell by Cappelli while being pat frisked. (Compl. 2–3.) Cappelli allegedly swipеd his hand between the backside of Plaintiff’s rear end. (Id. at 3) Plaintiff told Cappelli that this conduct was not necessary and Cappelli smirked and responded that Plaintiff probably liked it. (Id.; Pl.’s Letter 2.) While he does not name them individually as Defendants in this Action, Plaintiff alleges that several of Cappelli’s coworkers were present, specifically Officer Cappelli’s brother, who was standing behind Plaintiff, Officer Mackey, Officer Mendoza, and Sergeant Berlinski, all of whom Plaintiff lists as part of the Emergency Response Team. (Compl. 3.)
Plaintiff alleges that Sheriff Dubois is the sheriff in charge of OCJ, so that although his “involvement [was] not direct,” he is responsible for the conduct of his employees “to a degree.” (Pl.’s Letter 3.)
Plaintiff alleges that he filed a grievance, which remains pending on appeal, and reported the incident to the PREA hotline, during which he spoke to someone who was suppоsed to investigate the alleged incident. (Id. at 2.)2 Plaintiff alleges that he was confined to his cell for
Plaintiff cites a PREA video that all inmates allegedly view upon intake that states that OCJ has a zero-tolerance policy for sexual abuse or sexual assault from staff or inmates alike as the basis for his grievance. (Id. at 2.) Plaintiff alleges that, as a result of this incident, his mental health has been disrupted. (Compl. 3.) Specifically, he felt violated and alleges that the incident has reminded him of the sexual abuse he experienced as an adolescent in foster care. (Id.) As a result of this alleged misconduct, Plaintiff alleges that he has experienced depression, mental anguish, humiliation, sleepless nights, and mental trauma. (Id.)
Plaintiff noted in his Complaint that he filed a grievance at OCJ, and that the grievance procedure at the jail covered his claims. (Id. at 4.) However, Plaintiff also noted that he did not know if the grievance procedure did not cover some of his claims, and answered affirmatively to the question “If you did not file a grievance, did you inform any officials of your claim(s)?” (Id. at 4–5.) Plaintiff noted that he informed “mental health,” which submitted a report, and informed Lieutenant Potter, a Grievance and PREA Coordinator, for whom Plaintiff provided a
B. Procedural History
Plaintiff’s Complaint and application to proceed in forma pauperis (“IFP”) were filed on May 1, 2018. (Dkt. Nos. 1, 2.) The Court granted Plaintiff’s IFP application on May 15, 2018. (Dkt. No. 6.) On May 24, 2018, the Court issued an Order directing service on Defendants. (Dkt. No. 8.) On August 6, 2018, Defendants filed a letter requesting a pre-motion conference in anticipatiоn of filing a Motion To Dismiss. (Letter from Karen Edelman-Reyes, Esq. to Court (Dkt. No. 14).) The Court granted the request and set a briefing schedule on August 21, 2018. (Dkt. No. 15.)
On September 12, 2018, Defendants filed the instant Motion To Dismiss and accompanying papers. (Not. Of Mot.; Decl. of Karen Edelman-Reyes, Esq. (“Edelman-Reyes Decl.”) (Dkt. No. 18); Mem. of Law in Supp. of Mot. (“Defs.’ Mem.”) (Dkt. No. 19); Not. of Mot. to a Pro Se Litigant (the “Notice”) (Dkt. No. 20).)4 On November 5, 2018, Defendants filed a declaration in further support of the Motion To Dismiss. (Decl. of Karen Edelman-Reyes, Esq. in Further Supp. of Mot. To Dismiss (“Edelman-Reyes’s Reply Decl.”) (Dkt. No. 22).)
II. Discussion
Defendants argue that Plaintiff fails to sufficiently allege personal involvement by Dubois, fails to state a claim for violatiоns of his Fourth and Eighth Amendment rights, fails to state a claim for retaliation under the First Amendment, fails to state a claim for due process violations under the Fourteenth Amendment, and that Plaintiff failed to exhaust his administrative remedies. (Defs.’ Mem. 1.) County Defendants also argue they are entitled to qualified immunity. (Id.) The Court will address each argument to the extent necessary.
A. Standard of Review
The Supreme Court has held that, while a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, quotation marks, and alterations omitted). Indeed,
In considering a motion to dismiss, the Court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency of a complaint we accept as true all factual allegations . . . . ” (quotation marks omitted)). Further, “[f]or the purpose of resolving [a] motion to dismiss, the Court . . . draw[s] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Where, as here, a plaintiff proceeds pro se, the “complaint[] must be construеd liberally and interpreted to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted). However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.” (italics and quotation marks omitted)).
Generally, “[i]n adjudicating a
B. Analysis
1. Personal Involvement of Defendant Dubois
Defendants argue that the Complaint should be dismissed against Dubois because he was not personally involved in the alleged constitutional violations. (Defs.’ Mem. 4–6.) “It is well settled that, in order to establish a defendant’s individual liability in a suit brought under
(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.
Id. at 139 (italics and internal quotation marks omitted) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). In other words, “[b]ecause vicarious liability is inapplicable to . . .
Plaintiff has failed to plausibly allege the personal involvemеnt of Dubois. Plaintiff’s Complaint alleges that Cappelli sexually assaulted him and describes the events leading up to and following this event. (See Compl. 2–3.) The Complaint contains no allegations whatsoever that Dubois was involved in, aware of, or somehow permitted these incidents to take place. Indeed, his name and position appears nowhere in the Complaint, other than in the caption and summarily on page two. (See Compl. 1–5.) Plaintiff admits that Dubois was not directly involved but argues he should be held accountable as a supervisor. (Pl.’s Letter 3.) This alone is grounds to dismiss the claims against him. See Davis v. Cheverko, No. 16-CV-4034, 2017 WL 6397749, at *4 (S.D.N.Y. Dec. 13, 2017) (collecting cases); Perkins v. City of New York, No. 14-CV-3779, 2017 WL 1025987, at *2 (S.D.N.Y. Mar. 15, 2017) (“Where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted.” (alteratiоn and internal quotation marks omitted)). That Dubois allegedly held a supervisory role does not change the analysis. See Iqbal, 556 U.S. at 676 (“[A] plaintiff must
2. Eighth Amendment Sexual Assault Claim
Plaintiff also claims that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment. Specifically, Plaintiff alleges that on April 1, 2018, Cappelli violated his Eighth Amendment rights by groping him under the guise of conducting a body pat frisk. (Compl. 3.) Cappelli argues that Plaintiff has not plausibly alleged an Eighth Amendment violation. (Defs.’ Mem. 6–10.)
The Eighth Amendment protects prisoners from cruel and unusual punishment by prison officials. See Wilson v. Seiter, 501 U.S. 294, 296–97 (1991).5 “To state an Eighth Amendment
Here, Plaintiff alleges Cappelli “[l]iterally swiped [h]is [h]and in [b]etween my [b]ackside of my [r]ear end” during a pat down frisk outside his cell door in the presence of other corrections officers. (Compl. 2–3.) When Plaintiff “told [Cappelli] [ ] he didn’t need to put his hand in between the crack of my [a]ss” Cappelli told Plaintiff “you probably liked it.” (Id. at 3.) Even assuming that these allegations are sufficient to satisfy the objective prong, but see Perez v. Ponte, 236 F. Supp. 3d 590, 619 (E.D.N.Y. 2017) (collecting cases for proposition that “‘pat frisks’ . . . typically do not violate the Eighth Amendment’s proscription against Cruel and Unusual Punishment”), adopted by 2017 WL 1050109 (E.D.N.Y. Mar. 15, 2017), they are insufficient to plausibly show that Cappelli acted “to arouse or gratify [himself] or humiliate
3. First Amendment Retaliation Claim
Defendants argue that Plaintiff’s six-day confinement was not a retaliatory action and that Plaintiff fails to allege a causal connection between the filing of his grievance and the six-day confinement. (Defs.’ Mem. 13–16.)6
“Prisoners have a constitutional right to petition the government, and it is a violation of
Plaintiff asserts that he filed a grievance at OCJ, specifically a clаim of sexual assault and/or abuse with a PREA investigator, (Compl. 4), and that he was subsequently locked in his cell for approximately six days in retaliation for his complaint, (id. at 3). Plaintiff asserts that he told a mental health counselor that he was fearful of walking alone within the facility hallways while Cappelli was on hallway detail because he was fearful he would be searched again. (Pl.’s Letter 3.) Plaintiff was subsequently confined by Zepplin in what Plaintiff alleges was an act of retaliation. (Id.) Finally, Plaintiff alleges that Cappelli, who works in the same unit as Zepplin, put a “no contact” on him. (Id.)
Defendants do not contest that filing a grievance is protected speech, as indeed “[i]t is well-established that inmates’ filing of grievances is a constitutionally protected exercise of their
Defendants do, however, argue that six days of confinement does not constitute an adverse action for purposes of a First Amendment retaliation claim. (Defs.’ Mem. 14.) An adverse action is any “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (citation omitted). In determining whether a prison official’s conduct constitutes adverse action, “the court’s inquiry must be tailored to the different circumstances in which retaliation claims arise, bearing in mind that prisoners may be required to tolerate more than average citizens.” Id. (citation, quotation marks, and alterations omitted). “[T]he test, however, is not whether [the] plaintiff . . . himself was chilled (if that were the standard, no plaintiff likely would prevail, for the very commencement of a lawsuit could be used by [the] defendants to argue that the plaintiff was not chilled).” Id. at 354 (citation omitted). Defendants notably do not cite any caselaw for the proposition that being placed in confinement for six days cannot constitute an adverse action, and indeed they cannot because the Second Circuit and lower courts therein have found that being placed in keeplock or being otherwise confined is indeed an adverse action. See Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (holding that placing plaintiff in keeplock for three weeks was an adverse action); Hayes v. Dahkle, No. 16-CV-1368, 2018 WL 7356343, at *15 (N.D.N.Y. Dec. 11, 2018) (assuming that placing plaintiff
Plaintiff must, however, also allege a “causal connection” between the protected conduct and the adverse action. Garcia v. Watts, No. 08-CV-7778, 2009 WL 2777085, at *11 (S.D.N.Y. Sept. 1, 2009); see also Dawes, 239 F.3d at 492 (holding that in order to satisfy the causation requirement, allegations must be “sufficient to support the inference that the speech played a substantial part in the adverse action” (citation, alteration, and quotation marks omitted)). To meet this burden, Plaintiff must allege facts suggesting that the protected conduct was a “‘substantial or motivating factor’ in the prison officials’ decision to take action against [him].” Smith v. Christopher, No. 06-CV-1196, 2008 WL 4283519, at *10 (N.D.N.Y. Sept. 18, 2008) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)); Van Dunk v. Brower, No. 11-CV-4564, 2013 WL 5970172, at *8 (S.D.N.Y. Nov. 7, 2013) (“The
Here, Plaintiff alleges that he filed a grievance alleging sexual assault with a PREA investigator and that he was subsequently locked in his cell for six days in retaliation for this grievance. (Compl. 2–3.) Plaintiff further alleges that he told a mental health counselor that he was fearful of walking in the hallway while Cappelli was on hallway detail and that he was fearful he would be searched again, and that he was subsequently confined by Zepplin in an act of retaliation. (Pl.’s Letter 3.) Plaintiff also alleges that Cappelli, who works in the same unit as
Plaintiff does not, however, allege the dates during which he was confined to his cell оr how soon after he filed his grievance his confinement took place. “At most, Plaintiff may have intended to rely on temporal proximity between his complaints and his [confinement to his cell] to demonstrate a causal connection,” however, Plaintiff did not specify when he was confined to his cell, and this prevents the Court from inferring retaliation based on temporal proximity alone. Ahmad v. White Plains City Sch. Dist., No. 18-CV-3416, 2019 WL 3202747, at *10 (S.D.N.Y. July 16, 2019) (holding that court could not infer retaliation based on temporal proximity where plaintiff alleged when the adverse action occurred but failed to allege when the protected speech occurred); see also Feliciano v. City of New York, No. 14-CV-6751, 2015 WL 4393163, at *9 (S.D.N.Y. July 15, 2015) (holding that where plaintiff did “not provide the date” he engaged in protected activity, it was “impossible for the Court to determine the temporal proximity of the alleged retaliatory acts to the protected conduct”); Henry v. NYC Health & Hosp. Corp., 18 F. Supp. 3d 396, 412 (S.D.N.Y. 2014) (dismissing retaliation claim where the complaint “fails to state with even a modicum of specificity when the relevant events occurred”).
Moreover, Plaintiff fails to allege any connection between the individuals with whom he filed his grievances and the individuals who retaliated against him. For example, Plaintiff does not allege that the mental health counselor or the PREA investigator told anyone about Plaintiff’s statements or that the officers who ultimately confined Plaintiff had any knowledge of those statements. Nor does Plaintiff allege that Zepplin and Cappelli ever discussed Plaintiff or his grievances or his confinement. Plaintiff merely alleges that Zepplin and Cappelli worked together, (Pl.’s Letter 3), but fails to provide any specifics about how the individuals who received his grievances and the individuals who implemented Plaintiff’s confinement were
4. Fourth Amendment Unreasonable Search Claim
Plaintiff cites the Fourth Amendment in his filings and the Court thus liberally reads his Complaint to allege a Fourth Amendment violаtion for the invasive pat-frisk. (Compl. 3.) Plaintiff alleges that, in the presence of other prison officials, Cappelli “literally swiped his hand in between the backside of my rear end.” (Id.) Defendants argue that Plaintiff fails to sufficiently allege a violation of his Fourth Amendment Rights. (Defs.’ Mem. 10–13.)
“The Fourth Amendment ‘protects individual privacy against certain kinds of governmental intrusion,’ and it is well-established that its protections extend to prisoners and pretrial detainees.” Holland v. City of New York, 197 F. Supp. 3d 529, 542 (S.D.N.Y. 2016) (quoting Katz v. United States, 389 U.S. 347, 350 (1967)). Thus, “although the inmates’ right to privacy must yield to the penal institution’s need to maintain security, it does not vanish
Plaintiff summarily alleges that he was searched outside his cell and that Cappelli swiped his hand between Plaintiff’s backside. (Compl. 2–3.) Plaintiff does not allege why he was searched and offers no detail about the duration of the search or any other facts about the search. Plaintiff’s allegation that Cappelli swiped his hand between his backside, without any further
5. Fourteenth Amendment Procedural Due Process Claim
Plaintiff cites the Fourteenth Amendment in his filings and the Court thus liberally reads his Complaint to allege a Fourteenth Amendment violation. (Compl. 3.) Defendants argue that Plaintiff fails to state a Fourteenth Amendment Claim “presumably regarding” a disciplinary hearing against him. (Defs.’ Mem. 16–18.) “To present a due process claim, a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.” Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004)
As a guidepost to determine whether due proсess protections are required in the prison context, the Second Circuit has instructed that “[w]here the plaintiff was confined for an
Regarding the process an inmate is due, a disciplinary hearing comports with due process when an inmate receives “advance written notice of the charges; a fair and impartial hearing officer; a reasonable opportunity to call witnesses and present documentary evidence; and a written statement of the disposition, including supporting facts and reasons for the action taken.” Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004) (citation omitted). “In the context of prison disciplinary hearings, the Second Circuit has said that its ‘conception of an impartial decisionmaker is one who, inter alia, does not prejudge the evidence and who cannot say, with . . . utter certainty . . . , how he would assess evidence he has not yet seen.’” Rahman v. Acevedo, No. 08-CV-4368, 2011 WL 6028212, at *7 (S.D.N.Y. Dec. 5, 2011) (italics omitted) (quoting Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir. 1990)).
“[E]ven if an inmate is segregated for fewer than 101 days, his liberty interest may still be implicated if ‘the conditions were more severe than the normal punitive segregation conditions . . . or a more fully developed record showed that even relatively brief confinements under normal punitive segregation conditions were, in fact, atypical.’” Samuels v. Davis, No. 14-CV-7204, 2015 WL 4653238, at *2 (S.D.N.Y. July 28, 2015) (alterations omitted) (quoting
For the reasons stated above, Defendants’ Motion To Dismiss is granted. Because this is the first adjudication of Plaintiff‘s claims, the dismissal is without prejudice. If Plaintiff wishes to file an amended complaint, Plaintiff must do so within 30 days of the date of this Opinion. Plaintiff should include within that amended complaint all changes to correct the deficiencies identified in this Opinion that Plaintiff wishes the Court to consider. Plaintiff is advised that the amended complaint will replace, not supplement, the instant Complaint. The amended complaint must contain all of the claims, factual allegations, and exhibits that Plaintiff wishes the Court to consider. If Plaintiff fails to abide by the 30-day deadline, his claims may be dismissed with prejudice.
The Clerk is respectfully directed to terminate the pending Motion, (see Dkt. No. 17), the Notice to Plaintiff that also appears as a motion, (Dkt. No. 16), and mail a copy of this Opinion to Plaintiff.
SO ORDERED.
Dated: August 12, 2019
White Plains, New York
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE