Smith v. MillerSmith v. Miller
- Reporters:
- ,
- Before:
- Nelson S. Román
NELSON S. ROMÁN, United States District Judge
Plaintiff Raysun Smith, proceeding pro se and in forma pauperis, brings this
BACKGROUND
I. Factual Allegations
The following facts are derived from the Complaint and are assumed to be true for the purposes of this motion.
a. Plaintiff‘s grievance and the January 5, 2015 incident
On December 17, 2014, while Plaintiff was incarcerated at Fishkill Correctional Facility (“Fishkill“), a corrections officer refused to take Plaintiff‘s picture and issue him a new identification card because Plaintiff‘s hair was styled in cornrow braids. (Compl. ¶ 23–27, ECF No. 2.) On December 30, 2014, Plaintiff filed a grievance with the Inmate Grievance Resolution Committee (“IGRC“) at Fishkill, claiming that the officer‘s refusal to issue him an identification card was an act of discrimination. (Id. ¶ 28.) Plaintiff was interviewed by the acting IGRC supervisor, Defendant Del Bianco, about the incident on January 5, 2015. (Id. ¶ 29–30.) During the interview, Defendant Del Bianco became angry and threatened to place Plaintiff in the Secured Housing Unit (“SHU“) if he did not take the cornrow braids out of his hair. (Id. ¶ 32.) Defendant Del Bianco further threatened that “he would come up to Plaintiff‘s housing unit and
Upon returning to his housing unit, fearing that he would be sent to the SHU, Plaintiff packed up all of his belongings as a precautionary measure. (Id. ¶ 35.) Plaintiff then left his housing unit to attend his daily assigned school program. (Id. ¶ 36.) When Plaintiff returned to his housing unit at about three in the afternoon, Defendant Miller confronted Plaintiff and asked him why his property was packed up. (Id. ¶ 43.) Plaintiff informed Defendant Miller about Defendant Del Bianco‘s threat to send Plaintiff to the SHU, to which Defendant Miller responded, “[G]et the fuck out of here, get away from my desk.” (Id. ¶ 44.) Later that afternoon as Defendant Miller was distributing inmate mail in Plaintiff‘s housing unit, Defendant Miller instructed Plaintiff to go back to his room and unpack his property. (Id. ¶ 47.) Plaintiff responded “O.K” while simultaneously laughing at a piece of mail he had just received. (Id.) Defendant Miller, believing that Plaintiff was laughing at him, began yelling at Plaintiff. (Id. ¶ 48.) Defendant Miller asked Plaintiff, “Did you just fucking laugh at me?” and instructed Plaintiff to “go to [his] fucking room, unpack [his] shit” and not to come out for the night. (Id.) Defendant Miller then escorted Plaintiff back to his room, and “in a threatening manner stood close to Plaintiff‘s face and stated ‘You think this is a game? Do you know where you are at?‘” and warned, “I‘ll be back.” (Id. ¶ 49.)
Shortly thereafter, Defendant Miller returned to Plaintiff‘s room with Defendant Tabor. (Id. ¶ 53.) While Defendant Tabor stood outside of Plaintiff‘s room door, Defendant Miller approached Plaintiff, stated “It‘s not so funny now,” and punched Plaintiff in his left eye. (Id. ¶ 56–57.) Defendant Tabor then ran into the room and threw Plaintiff to the floor. (Id. ¶ 58.)
After nearly three minutes, Defendant Sgt. Llorens arrived to Plaintiff‘s room. (Id. ¶ 62.) Defendant Llorens was present for part of the beating and did not intercede. (Id. ¶ 66.) Plaintiff was then raised to his feet and placed in a chokehold. (Id. ¶ 64.) While in this chokehold, Defendants began beating Plaintiff once again. (Id. ¶ 67.) Plaintiff attempted to inform Defendant Llorens that he could not breathe. (Id. ¶ 68.) Defendant Llorens replied, “Now you know how Eric Gardner felt,” and laughed. (Id.)
Defendant Heal arrived while these events were unfolding and also failed to intercede. (Id. ¶ 69.) Defendant Heal and the other officers involved in the beating eventually escorted Plaintiff to the Regional Medical Unit (“RMU“). (Id. ¶ 70.) The officers continued to beat Plaintiff as they escorted him to the RMU. (Id. ¶ 71.)
Once at the RMU, Plaintiff was seen by a nurse—Defendant John Doe Nurse—who refused to document Plaintiff‘s injuries. (Id. ¶ 72–73.) The nurse told Plaintiff, “[T]he officers said nothing happened to you and that‘s what I‘m going to write” and that “even if something did happen to you, you look like you deserved it, so I‘ll make sure there‘s no record of it because they did their job.” (Id. ¶ 73–74.) Plaintiff did not receive medical treatment for his injuries. Plaintiff was thereafter taken to the SHU. (Id. ¶ 77.)
On January 8, 2015, Plaintiff was informed that the IGRC had denied the grievance Plaintiff filed regarding the alleged discrimination that took place on December 17, 2014. (Id. ¶ 78.) Plaintiff appealed the denial to the facility‘s superintendent on January 9, 2015. (Id. ¶ 79.) The superintendent denied Plaintiff‘s grievance appeal on January 13, 2015. (Id. ¶ 81.)
On January 11, 2015, Plaintiff filed an additional grievance with the IGRC regarding the excessive use of force, discrimination, and denial of medical treatment that he experienced on January 5, 2015. (Id. ¶ 80.) Plaintiff‘s grievance was denied by the superintendent on February 5, 2015. Plaintiff filed a timely appeal with CORC. (Id. ¶ 90.) On April 29, 2015, Plaintiff received a denial of his excessive force appeal to CORC. (Id. ¶ 112.)
b. Acts of Retaliation
After Plaintiff filed his grievance for the events that took place on January 5, 2015, Plaintiff alleges that many Defendants retaliated against him. First, on February 3, 2015, Defendants Allen and the John Doe C.O. entered Plaintiff‘s cell to take a photograph of Plaintiff‘s cellmate, Troy Evans. (Id. ¶ 83.) Mr. Evans was asleep at the time, however, and the unnamed C.O. asked Plaintiff to wake him. (Id. ¶ 84.) Plaintiff responded that waking his cellmate was not his job. (Id. ¶ 85.) Defendant Allen, the other officer, and Plaintiff then got into a verbal dispute. (Id. ¶ 86.)
The next day, during lunchtime, Defendant Allen opened the food slot in Plaintiff‘s cell door and intentionally threw two cups of liquid at Plaintiff. (Id. ¶ 88.) Defendant Allen then told Plaintiff, “[S]ee what happens when you piss officers off.” (Id. ¶ 89.) Plaintiff alleges that Allen was clearly referring to both the verbal altercation from the previous day and the January 5th incident. (Id. ¶ 90.) Fearing for his safety, Plaintiff filed an official grievance relating to this incident on February 4, 2015. (Id. ¶ 92.)
A second incident occurred on February 10, 2015, when Plaintiff alleges he was issued a retaliatory and false inmate misbehavior report by Defendant Rufino that was cosigned by Defendant Sioco. (Id. ¶ 94.) In the report, Defendant Rufino alleged that Plaintiff was yelling into the gallery and refused to stop, stating “[G]o ahead, give me a ticket, I don‘t care.” (Id. ¶ 95.) At a disciplinary hearing held on February 18, 2015 regarding the hearing, Plaintiff‘s cellmate admitted both orally and in a written statement that he was the one yelling into the gallery and speaking to Defendant Rufino. (Id. ¶ 99–98.) Nonetheless, Plaintiff was found guilty of the allegations. (Id. ¶ 99.) Plaintiff subsequently filed an appeal to the superintendent to address the retaliatory ticket on February 8, 2015. Captain Harris denied the appeal and Plaintiff filed an appeal with DOCCS on February 27, 2015. (Id. ¶ 100.) Plaintiff‘s DOCCS appeal was denied on March 10, 2015. (Id. ¶ 102.)
On February 22, 2015, Plaintiff also filed a grievance stating that he was being fed his meals off of dirty trays in retaliation to the January 5, 2015 incident. (Id. ¶ 104.)
Finally on March 1, 2015, Defendants Riollano and Rufino searched Plaintiff‘s cell. (Id. ¶ 105.) Shortly thereafter, on March 7, 2015, Defendants O‘Rafferty and Rufino again searched Plaintiff‘s cell. (Id. ¶ 106.) During this second search, Defendants O‘Rafferty and Rufino placed their booted feet onto Plaintiff‘s pillow and left footprints on Plaintiff‘s bedding. (Id. ¶ 107.) Defendants O‘Rafferty and Rufino also spit on Plaintiff‘s Muslim prayer rug during their search. (Id. ¶ 108.) Fearing for his safety and religious freedom, Plaintiff filed a grievance to address the retaliatory actions of Defendant O‘Rafferty. (Id. ¶ 109.)
Plaintiff initiated this action pursuant to
STANDARD ON A MOTION TO DISMISS
Under
In determining whether a complaint states a plausible claim for relief, a district court must consider the context and “draw on its judicial experience and common sense.” Id. at 679. A claim is facially plausible when the factual content pleaded allows a court “to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
“Where, as here, a plaintiff proceeds pro se, the court must ‘construe [] [his] [complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].‘” Askew v. Lindsey, No. 15-CV-7496 (KMK), 2016 WL 499261, at *2 (S.D.N.Y. Sept. 16, 2016) (citing Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)). Yet, “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.‘” Id. (citing Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013)).
DISCUSSION
Liberally construed, Plaintiff‘s Complaint alleges claims under the First and Eighth Amendments. Specifically, Plaintiff suggests First Amendment retaliation claims against Defendants Allen, Rufino, Sioco, O‘Rafferty, Riollano, and Harris and free exercise claims against Defendants Rufino and O‘Rafferty. Additionally, Plaintiff‘s Complaint implies an Eighth Amendment failure to protect claim against Defendant Del Bianco. In the present motion, Defendants assert that (1) Plaintiff‘s claims should be dismissed for failure to exhaust administrative remedies, and (2) Plaintiff failed to state a claim for any constitutional violation. The Court will address each set of claims in turn.
I. Exhaustion
Defendants first contend that several of Plaintiff‘s claims should be dismissed for failure to exhaust administrative remedies, including (1) Plaintiff‘s claim against Defendant Allen for throwing two cups of liquid at him; (2) Plaintiff‘s claim that he was being fed his meals off dirty trays; (3) Plaintiff‘s claim regarding the search of his cell conducted on March 1, 2015; and (4) Plaintiff‘s claim regarding the search of cell conducted on March 7, 2015. (Defs.’ Mot. at 9.) The Court finds that dismissal of Plaintiff‘s above claims for failure to exhaust is inappropriate at this time.
Under the Prison Litigation Reform Act of 1995 (“PLRA“), “[n]o action shall be brought with respect to prison conditions under [
Exhausting all remedies “‘means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).‘” Washington v. Chaboty, No. 09-CV-9199, 2015 WL 1439348, at *6 (S.D.N.Y. Mar. 30, 2015) (quoting Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009)). “[B]ecause ‘it is the prison‘s requirements, and not the PLRA, that define the boundaries of proper exhaustion[,] . . . [t]he exhaustion inquiry . . . requires that [the court] look at the state prison procedures and the prisoner‘s grievance to determine whether the prisoner has complied with those procedures.‘” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)).
A person detained or incarcerated at a DOCCS facility must exhaust all steps of the Inmate Grievance Resolution (“IGR“) Program (“IGRP“). See Robinson v. Henschel, No. 10-CV-6212, 2014 WL 1257287, at *10 (S.D.N.Y. Mar. 26, 2014). The IGRP provides a three-tiered process for adjudicating inmate complaints: (1) the prisoner files a grievance with the IGR committee (“IGRC“), (2) the prisoner may appeal an adverse decision by the IGRC to the superintendent of the facility, and (3) the prisoner then may appeal an adverse decision by the superintendent to the Central Office Review Committee (“CORC“). See Espinal, 558 F.3d at 125; see also
In the present case, Defendants argue that several of Plaintiff‘s retaliation claims should be dismissed because Plaintiff did not properly exhaust all available administrative remedies. In support of this argument, Defendants provide a declaration from the Assistant Director of the Inmate Grievance Program at DOCCS, Jeffrey Hale, along with two exhibits, purporting to demonstrate that Plaintiff never appealed to CORC his grievances relating to the above claims.
Courts typically “may not look beyond the four corners of the complaint in considering a motion to dismiss.” Mayo v. Federal Government, 558 Fed. App‘x 55, 56 (2d Cir. 2014). “A complaint ‘is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.‘” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 155 (2d Cir. 2002)). Where a document is not attached as an exhibit nor incorporated by reference, a court “may nevertheless consider it where the complaint ‘relies heavily upon its terms and effect,’ thereby rendering the document ‘integral’ to the complaint.” Id. (quoting DiFolco v. MSNBC Cable L.L.C., 662 F.3d 104, 111 (2d Cir. 2010)).
In the context of
In the case at hand, Plaintiff neither incorporated by reference nor relied on the administrative records that Defendants now ask this Court to consider. Although Plaintiff explicitly states that he “exhausted all of his administrative remedies trying to address this violent incident,” Plaintiff‘s allegation of administrative exhaustion refers only to the January 5th incident. (See Compl. ¶ 113.) Plaintiff does not claim to have exhausted the administrative remedies for any of the claims at issue in Defendants’ present motion. Neither does Plaintiff assert he appealed the grievances relating to these claims to the highest level—the superintendent of CORC.
Moreover, Plaintiff was under no obligation to affirmatively plead or demonstrate administrative exhaustion in the Complaint. As the Second Circuit has recognized, “[f]ailure to exhaust administrative remedies is an affirmative defense under the PLRA, not a pleading requirement.” Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (emphasis added) (internal citations omitted); see also Jones v. Bock, 549 U.S. 199, 216 (2007)(“We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specifically plead or demonstrate exhaustion in their complaints“); contra Smart v. Goord, 441 F. Supp. 2d 631, 637 (S.D.N.Y. 2006) (“As exhaustion of administrative remedies is a prerequisite to bringing suit, an inmate plaintiff necessarily refers to and relies on documents exhibiting proof of exhaustion. Because the exhaustion issue is an integral part of the prisoner‘s claims, the Court may refer to materials outside of the complaint on a
Therefore, Defendants’ records regarding Plaintiff‘s CORC appeals were neither incorporated by reference nor relied upon by Plaintiff in the Complaint. As such, the Court will not consider Defendants’ documentary evidence of non-exhaustion at this juncture.
While it is imperative to resolve the issue of exhaustion as early as possible, if “it is not clear from the face of the complaint whether the plaintiff exhausted, a
II. First Amendment Retaliation Claims
The Second Circuit urges caution when addressing retaliation claims brought by prisoners because “claims by prisoners that particular administrative decisions have been made for retaliatory purposes are prone to abuse. Virtually every prisoner can assert such a claim as to every decision which he or she dislikes.” Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). Therefore, courts should “examine prisoners’ claims of retaliation with skepticism and particular care.” Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). Accordingly, “a complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone.” Flaherty, 713 F.2d at 13. To survive a motion to dismiss, a prisoner asserting a retaliation claim must “allege ‘(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.‘” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003)(quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001)).
Here, Plaintiff alleges that many of the Defendants engaged in acts of retaliation after he filed a grievance reporting Defendants Miller, Tabor, Diaz, Kothari, Heal, and Llorens for their alleged use of excessive force on January 5, 2015.2 As the Second Circuit has recognized, the filing of prison grievances is a constitutionally protected activity. Davis, 320 F.3d at 352. Plaintiff, therefore, meets the first prong of the test for retaliation claims. The Court now turns to whether Plaintiff‘s individual retaliation claims satisfy the remaining portions of the tripartite test.
a. Retaliation Claim Against Defendant Allen
Plaintiff fails to raise a plausible claim of retaliation against Defendant Allen. In the Complaint, Plaintiff alleges that on February 4, 2015, Defendant Allen “intentionally threw two cups of liquid at Plaintiff,” and stated, “see what happens when you piss officers off.” (Compl. 83–89.)
Assuming, arguendo, that Defendant Allen‘s behavior constitutes an adverse action, Plaintiff nonetheless fails to allege a causal connection between his protected activity and Defendant Allen‘s conduct with sufficient specificity. The alleged causal connection “must be sufficient to support the inference that the speech played a substantial part in the [] adverse [] action.” Walker v. Schriro, 2013 WL 1234930, at *8 (S.D.N.Y Mar. 26, 2013) (internal quotation marks omitted). Both direct and circumstantial evidence can support such an inference. However, “[e]ven at the motion to dismiss stage, the inmate must allege more than his personal belief that he is a victim of retaliation.” Id. (internal quotations omitted). “Conclusory allegations of retaliation are not sufficient; the plaintiff must allege facts from which retaliation may
Here, Plaintiff fails to state facts from which retaliation may be inferred. “Generally, alleged retaliation motivated by an action the prisoner took which did not personally involve the prison officials is insufficient for a retaliation claim.” Ortiz v. Russo, No. 13-CV-5317 (ER), 2015 WL 1427247, at *11 (S.D.N.Y Mar. 27, 2015) (citing Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (dismissing a pro se prisoner‘s retaliation claim against a corrections officer where the alleged basis for retaliation was a letter the prisoner wrote that neither named nor addressed the defendant)). Here, Plaintiff merely makes the conclusory assertion that Defendant Allen‘s statement, “see what happens when you piss officers off,” referred to the January 5th incident and Plaintiff‘s subsequent grievance.3 Defendant Allen, however, had no apparent involvement in the January 5th incident and Plaintiff fails to allege any facts that would support a finding that Defendant Allen was personally motivated by Plaintiff‘s grievance. While there may exist instances in which retaliation claims may be established against defendants who were not personally involved in the original incident, at a minimum, plaintiffs must allege that such defendants have personal knowledge of the protected activity that purportedly motivated the retaliatory conduct. In the present case, Plaintiff neither alleges that Defendant Allen was somehow personally involved in the January 5th incident, or even that Defendant Allen knew of
b. Retaliation claim Against Defendants Rufino, Sioco, and Harris—False Misbehavior Report
Similarly, Plaintiff fails to establish the necessary causal connection between his protected activity—filing a grievance—and the alleged retaliatory conduct of Defendants Rufino, Sioco, and Harris. Plaintiff alleges that Defendant Rufino issued him a retaliatory and false inmate misbehavior report, signed by Defendant Sioco, accusing Plaintiff of yelling into the prison gallery and refusing orders to stop. (Compl. ¶ 94–95.) Despite written admission from Plaintiff‘s cellmate that it was he who was yelling into the gallery, Plaintiff was found guilty of the allegations at a hearing on February 18, 2015. (Id. ¶ 98–99.) Plaintiff claims he was found guilty of the false allegations in retaliation for his grievance relating to the January 5th incident. (Id.) Plaintiff appealed the retaliatory false ticket, but his appeal was denied by Captain Harris. (Id. ¶ 101.)
Like his allegations against Defendant Allen, Plaintiff‘s allegations against Defendants Rufino, Sioco, and Harris lack facts from which a retaliatory motive may be inferred. In evaluating whether a causal connection exists between a protected activity and the filing of an allegedly retaliatory false misbehavior report, courts have considered a number of factors, “including: (i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate‘s prior good disciplinary record, (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his motivation.” Ortiz, 2015 WL 1427247, at *11.
As to the first factor, Plaintiff filed his grievance relating to the January 5th incident on January 11, 2015. (Compl. ¶ 80.) The false misbehavior report was issued on February 10, 2015.
The remaining factors, however, do not support an inference of retaliation. The Complaint is silent regarding Plaintiff‘s previous disciplinary record, Plaintiff was found guilty at a subsequent hearing, and Plaintiff does not allege any statements by Defendants regarding their motivation. Moreover, Defendants Rufino, Sioco, and Harris do not appear to have been personally involved in the January 5th incident and Plaintiff fails to allege that Defendants Rufino, Sioco, and Harris even knew of the incident and Plaintiff‘s subsequent grievance. Plaintiff, therefore, fails to raise a retaliation claim against Defendants Rufino, Sioco, and Harris with regards to the false misbehavior report.
c. Retaliation claims against Rufino, Riollano, and O‘Rafferty—Cell searches
Plaintiff next alleges that Defendants Rufino, Riollano, and O‘Rafferty engaged in retaliation by searching his cell on two occasions—first on March 1, 2015 and again on March 7, 2015. (Compl. ¶ 105–07.) Plaintiff further alleges that in the course of the second search, Defendants Rufino and Riollano placed their booted feet on his pillow and blanket and spit on his Muslim prayer rug. Id. Plaintiff refers to these searches as “retaliatory actions” in the Complaint, but does not specify what protected conduct Defendants were retaliating against.
However, Plaintiff‘s allegations are insufficient to raise a retaliation claim against Defendants Rufino, Riollano, and O‘Rafferty. Although appeals of misbehavior reports—like the filing of grievances—constitute protected conduct, Wood v. Cty. of Sullivan, No. 00-CV-4339 (DLC), 2002 WL 31158822, at *10 (S.D.N.Y Sept. 27, 2002), Plaintiff‘s allegations do not satisfy the remaining elements of a retaliation claim.
Specifically, the alleged conduct of Defendants Rufino, Riollano, and O‘Rafferty does not amount to an adverse action. An adverse action is any action “that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Id. at 353 (internal quotation marks omitted). Otherwise, the act is ”de minimis and therefore outside the ambit of constitutional protection.” Id. (internal quotation marks omitted). “In making this determination, the court‘s inquiry must be ‘tailored to the different circumstances in which retaliation claims arise,’ bearing in mind that ‘[p]risoners may be required to tolerate more . . . than average citizens, before a [retaliatory] action taken against them is considered adverse.‘” Davis, 320 F.3d at 353 (quoting Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001)).
Here, Plaintiff accuses Defendants Rufino, Riollano, and O‘Rafferty of conducting retaliatory cell searches. “The Second Circuit has not addressed whether a cell search can constitute an adverse action for purposes of a First Amendment retaliation claim.” Mateo v. Alexander, No. 10-CV-8427 (LAP) (DCF), 2012 WL 864805, at *4 (S.D.N.Y Mar. 14, 2012). However, numerous district courts in this circuit have recognized that while searches alone may not be actionable, prisoners “can assert a retaliation claim for [defendants‘] conduct in conjunction with the cell search.” Rodriguez v. McClenning, 399 F. Supp. 2d 228, 239 (S.D.N.Y. April 22, 2005); see also Steward v. Richardson, No. 15-CV-9034 (VB), 2016 WL 7441708, at *5 (S.D.N.Y. Dec. 27, 2016) (“Considered collectively, as they ought to be, plaintiff‘s allegations of retaliatory cell searches and destruction of his property are sufficient to state a claim.“).
Plaintiff does not allege that Defendant Riollano engaged in any retaliatory action beyond the search of his cell. (See Compl. ¶ 105–07.) Because cell searches alone have not been found actionable as adverse actions in this Circuit, the retaliation claim against Defendant Riollano is dismissed.
Defendants Rufino and O‘Rafferty, however, are alleged to have stepped on Plaintiff‘s bedding and spit on Plaintiff‘s Muslim prayer rug while conducting their search. (Compl. ¶ 107–8.) The Court, therefore, considers the cell search in conjunction with Defendants’ other conduct. Even in conjunction, however, Defendants’ acts do not constitute an adverse action sufficient to support Plaintiff‘s retaliation claim. Courts in this circuit have typically only found cell searches to constitute adverse actions when they involve significant deprivations or destruction of property. See, e.g., Smith v. City of New York, No. 14-CV-5927, 2017 WL 2172318, at *4 (S.D.N.Y May 16, 2017)(“[T]he confiscation or destruction of property taken at the time of searches may constitute an adverse action” (internal quotation marks omitted)); Smith v. City of New York, No. 03-CV-7576, 2005 WL 1026551, at *3 (S.D.N.Y May 3, 2005) (“[R]etaliatory destruction of a prisoner‘s personal property has previously been found substantial enough to
Here, the alleged retaliatory actions of Defendants Rufino and O‘Rafferty during the cell search—while inappropriate and harassing—did not deprive Plaintiff of his property nor cause its destruction. Accordingly, their actions are de minimis and do not constitute an adverse action. Plaintiff‘s retaliation claims against Defendants Rufino and O‘Rafferty are therefore dismissed.
d. Retaliation Claims Against Unnamed Defendants—Dirty Trays
For his final retaliation claim, Plaintiff alleges that he was being fed meals off of dirty trays “in retaliation for the incident of January 5, 2015.” (Compl. ¶ 104.) Plaintiff fails, however, to identify the parties responsible for these retaliatory actions or even name a “John Doe” defendant. Without more specific factual allegations, no causal connection between Plaintiff‘s protected conduct and the retaliatory acts may be inferred. Plaintiff‘s retaliation claim regarding the dirty trays is therefore dismissed. See Flynn v. Ward, No. 15-CV-1028, 2016 WL 1357737, at *14 (N.D.N.Y. Apr. 5, 2016) (ruling that “Plaintiff‘s failure to identify the parties responsible for the [retaliatory] incidents requires the Court to dismiss these retaliation claims“).
II. First Amendment Free Exercise Claim
Plaintiff‘s allegation that he feared for his religious freedom after Defendants Rufino and O‘Rafferty spit on his Muslim prayer rug during the March 7, 2015 search of his cell fails to raise a First Amendment Free Exercise claim.
“The Free Exercise Clause of the First Amendment is an ‘unflinching pledge to allow our citizenry to explore . . . religious beliefs in accordance with the dictates of their conscience.‘” Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999) (quoting Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984)). “Prisoners have long been understood to retain some measure of the constitutional protection afforded by the First Amendment‘s Free Exercise Clause.” Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003). However, the Second Circuit has acknowledged that, “although prisoners do not abandon their constitutional rights at the prison door, lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir. 2006) (internal citations and alterations omitted). Accordingly, the First Amendment protection afforded to inmates must be balanced with “the interests of prison official charged with complex duties arising from administration of the penal system.” Ford, 352 F.3d at 588.
To establish a Free Exercise claim, a plaintiff must typically show that a sincerely held religious belief was substantially burdened by conduct that was not reasonably related to a legitimate penological interest. Turner v. Sidorowicz, No. 12-CV-7048 (NSR), 2016 WL 3938344, at *5 (S.D.N.Y July 18, 2016); Holland v. Goord, 758 F.3d 215, 220–23 (2d Cir. 2014). For the purposes of this analysis, a “substantial burden” exists when “the state put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.” Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (internal quotation marks omitted). However, the Second Circuit has questioned the vitality of the “substantial burden” test following the concern articulated by the Supreme Court in Employment Division v. Smith, 494 U.S. 872 (1990), that application of the test “embroils courts in the unacceptable business of evaluating the relative merits of differing religious claims.” Holland, 758 F.3d at 220 (internal quotation marks omitted).
While this Court recognizes that “[i]t is not within the judicial ken to question the centrality of a particular beliefs or practice to a faith,” such a concern does not apply to the present action. See Smith, 494 U.S. at 887 (quoting Hernandez v. C.I.R., 490 U.S. 680, 686 (1989)). Here, Plaintiff has failed to allege any burden on his religious beliefs. In such cases—where the significance or centrality of a religious practice is not at issue—courts in this circuit have engaged in the “substantial burden” analysis. See Colliton v. Bunt, 15-CV-6580 (CS), 2016 WL 7443171, *11, n. 15 (S.D.N.Y. Dec. 27, 2016)(recognizing that the concerns articulated in Holland did not apply where the plaintiff failed to allege any burden on his religious beliefs), appeal dismissed, (Jan. 4, 2017); Newdow v. Peterson, 753 F.3d 105, 109–10 (2d Cir. 2014) (affirming the district court‘s dismissal of a Free Exercise claim where atheist plaintiffs failed to identify how the placement of “In God We Trust” on U.S. currency burdened their religious activity). Because Plaintiff makes no allegations regarding how Defendants’ actions pressured him to modify his behavior or violate his beliefs, he fails to state a Free Exercise Claim against Defendants Rufino and O‘Rafferty.
III. Eighth Amendment Claim
Plaintiff‘s Complaint, liberally construed, also suggests a possible Eighth Amendment claim against Defendant Del Bianco for inciting or encouraging the assault that transpired on January 5, 2015. Plaintiff alleges that on January 5, 2015, Defendant Del Bianco, the acting IGRC supervisor, “became angry and irate and began screaming and threatening him,” saying that he was going to “kick his ass” and “if [he] could not make it up to Plaintiff‘s housing unit that day, then one of his officers would come up there and handle it for him.” (Compl. ¶ 33.) Further, Plaintiff claims that shortly before he was assaulted in his cell, Defendant Miller—the same Defendant who is alleged to have initiated the assault on Plaintiff—stated he was going to call Defendant Del Bianco. (Compl. ¶ 41.)
To establish an Eighth Amendment claim, a prisoner must satisfy a two-part test, composed of an objective and subjective element. See, e.g., Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012). Objectively, the conduct at issue, evaluated “in light of contemporary standards of decency,” Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (internal quotation marks omitted), must be “sufficiently serious . . . to reach constitutional dimensions,” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1996) (internal quotation marks omitted). The subjective element requires the prison official accused of violating the Eighth Amendment to have possessed a “wanton state of mind” in carrying out the conduct at issue. Branham v. Meachum, 77 F.3d 626, 630 (2d Cir. 1996) (internal quotation marks omitted).
Further, courts have allowed Eighth Amendment claims against prison officials who have not directly inflicted physical injuries on prisoners, but whose “deliberate indifference” to a “substantial risk of serious harm” nonetheless contributed to such injury. See, e.g., Randle v. Alexander, 960 F. Supp. 2d 457, 472 (S.D.N.Y. 2013) (finding allegations that a prison guard
Here, Plaintiff suggests that Defendant Del Bianco intentionally incited and encouraged a violent attack on him by other prison guards. Such an allegation clearly satisfies the first—objective—prong of the Eighth Amendment inquiry; there is no question that instructing or encouraging other guards to attack an inmate poses an objectively serious risk of harm.
Plaintiff‘s allegations also easily satisfy the second—subjective—portion of the test, as “[i]ntentionally exposing an inmate to the risk of harm . . . with no penological purpose is indicative of deliberate indifference to the inmate‘s safety at best and manifests an intent to harm the inmate at worst.” Mirabella v. Correction Officer O‘Keenan, No. 15-CV-142S, 2016 WL 4678980, at *4 (W.D.N.Y. Sept. 7, 2016) (internal quotation marks omitted); see also Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“While .. deliberate indifference entails something more than mere negligence, the cases are also clear that it is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.“(emphasis added)); Randle, 960 F. Supp. 2d at 474 (S.D.N.Y. 2013)(ruling that a forced
CONCLUSION
For the foregoing reasons, Defendants’ partial motion to dismiss is GRANTED in part and DENIED in part. The First Amendment retaliation claims against Defendants Allen, Sioco, Rufino, Riollano, O‘Rafferty, and Harris are dismissed without prejudice. The First Amendment Free Exercise claims against Defendants Rufino and O‘Rafferty are also dismissed without prejudice. Because no claims remain against Defendants Allen, Sioco, Rufino, Riollano, O‘Rafferty, and Harris, they are dismissed from this action. Plaintiff‘s Eighth Amendment claims against Defendants Miller, Tabor, Diaz, Kothari, Heal, LLorens, and Del Bianco remain.
The remaining Defendants are directed to file their answer on or before November 13, 2017. The parties are further directed to appear for an in-person Initial Pretrial Conference scheduled for November 16, 2017 at 11:45am before Judge Román and complete a Case Management Plan and Scheduling Order, which should be submitted to chambers prior to the conference. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 32.
Dated: October 23, 2017
White Plains, New York
SO ORDERED,
NELSON S. ROMÁN
United States District Judge