Young v. PolizziYoung v. Polizzi
- Reporters:
- , ,
- Before:
- Christian F. Hummel
JOHN SHICOBRA YOUNG,
a/k/a J. Shicobra Young
Plaintiff
86-A-2673
Eastern N.Y. Correctional Facility
Box 338
Napanoch, New York 12458
HON. BARBARA D. UNDERWOOD
Acting Attorney General for the
State of New York
Attorney for Defendant
The Capitol
Albany, New York 12224-0341
OF COUNSEL:
ERIK BOULE PINSONNAULT, ESQ.
Assistant Attorney General
REPORT-RECOMMENDATION AND ORDER1
Plaintiff
I. FAILURE TO RESPOND
Young failed to oppose Defendant‘s Motion for Summary Judgment. Young was notified of the consequences of failing to respond to a summary judgment motion. Dkt. No. 49. Given this notice, Young was adequately apprised of the pendency of Defendant‘s motion and the consequences of failing to respond. However, “[t]he fact that there has been no response to a summary judgment motion does not . . . mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Even in the absence of a response, Defendant is entitled to judgment only if the material facts demonstrate his entitlement to judgment as a matter of law. Id.;
specifically controvert.“) (emphasis omitted).
A. Facts
The facts are related herein in the light most favorable to Young as the nonmoving party. See subsection III(A)
On 12/17/15 at approximately 9:45 am.[,] I interviewed Inmate John Doe [ ] in the West Wing SDU unit [sic] in regards to an incident that occurred involving inmate Young. Inmate John Doe states that over the course of the past few days, [I]nmate Young began delivering him hand written love notes, increasing in frequency. On 12/17/15, at approximately 8:00 a.m. Inmate Young placed a personalized Christmas card containing 1 candy cane and additional hand written notes on the cell bars of 32-23, occupied by Inmate John Doe. Inmate Young‘s increasingly aggressive and sexually suggestive behavior caused Inmate John Doe to feel threatened and fear for his safety. After receiving the most recent correspondence from [I]nmate Young, Inmate John Doe immediately reported to SDU to seek guidance and direction from his Counselor regarding the sexual advances. SDU Counselor Gibson notified me of the above incident and I then, with the assistance of Sign Language Interpreter Gibson, interviewed Inmate Young. Young admitted to writing and delivering multiple personalized hand written letters to
Polizzi Decl. at 10.
Menard searched Young‘s cell and recovered a cartoon-like drawing that was placed in a contraband locker. Polizzi Decl. at 10. Young was charged with a sex offense, stalking, and threats. Id. Young received a copy of the misbehavior report and was transferred to the Special Housing Unit (“SHU“).5 Young Dep. at 15; Polizzi Decl. at 10.
On December 17, 2015, Young executed a form entitled “Assistant List” and chose six assistants from the facility list, including “Meinecke Jr.” Polizzi Decl. at 12; Young Dep. at 23. On December 21, 2015, Polizzi presided over a Tier III disciplinary hearing6 related to the misbehavior report.7 Polizzi Decl. at ¶ 6. Young had no previous interactions with Polizzi. Young Dep. at 21. Pursuant to
At the commencement of the hearing, Polizzi asked Young if he met with his “assistant, Officer Meinecke Jr. on 12/18/15 at 10:20 a.m.” Polizzi Decl. at 27. Young replied, “Yes.”11 Id. Polizzi proceeded to read the misbehavior report into the record Young pled “not guilty.” Id. at 28. In response to Polizzi‘s request for an “explanation,” Young stated “I didn‘t do it sir. It was the other inmate. Regarding the candy, the candy cane was inside the garbage can, I just gave it to him.” Polizzi Decl. at 29. Young identified letters, a cartoon, a Christmas card, a check-list of questions, and notes and admitted that he wrote and delivered the documents to Inmate John Doe. Id.
Polizzi asked Young if he had any witnesses to call or documents to submit. Polizzi Decl. at 29. Young responded, “No, nothing, nothing at all.” Id.; Young Dep. at 33. Polizzi called Menard to testify, via speaker-phone, while Young was present. Polizzi Decl. at 30; Young Dep. at 35-36. Menard testified that he interviewed Inmate John Doe as well as Young during the course of his investigation. Polizzi Decl. at 31. Inmate John Doe reported that he felt threatened that he asked Young to stop writing letters. Id. at 31-33. Menard testified that the cartoon drawing of a rabbit, notes, check-list, and cards were “sexual in nature” and considered “active solicitation.” Id. Menard concluded that Young was attempting to “lure” Inmate John Doe into a sexual relationship. Id.
After Polizzi completed his questioning, Young was given the opportunity to pose questions to Menard through the hearing officer. Polizzi Decl. at 33-35. Menard testified
On December 28, 2015, the disciplinary hearing concluded.12 Polizzi Decl. at ¶ 6. Polizzi found Young guilty of all charges and sentenced him to 120 days SHU confinement with a corresponding loss of packages, commissary, and telephone privileges. Id. at 21. Polizzi considered the time Young had been confined to the SHU prior to the hearing and listed the “start date” for the sentence as December 17, 2015. Id. at ¶41, 21. Polizzi explained his decision on the record and issued a written statement of the disposition, including the evidence relied upon and the reasons for the sentence. Id. at 21-22, 38. On December 28, 2015, Young received the disposition. Young Dep. at 38.
Young appealed the disciplinary determination. Young Dep. at 46. On February 5, 2016, Director of the SHU/Inmate Discipline Program Donald Venettozzi (“Venettozzi“) modified the decision and reduced the penalty to ninety days. Dkt. No. 48-7 (“Venettozzi Decl.“) at ¶42, 11. Young claims that despite the modification, he served the entire four month sentence in SHU. Young Dep. at 40. Venettozzi states that Young was confined to the SHU for ninety days for the offenses related to the December 2015 misbehavior report. Venettozzi Decl. at ¶ 47. Venettozzi further avers that Plaintiff served additional time in the SHU for “other offenses.” Id. Young did not file a grievance or written complaint concerning the disciplinary hearing. Young Dep. at 47.
Young filed complaints in three separate civil rights actions in the United States District Court for the Southern District of New York. Dkt. No. 12 at 1. Because venue was improper in the Southern District, Chief United States District Judge Loretta A. Preska transferred all three actions to the United States District Court for the Western District of New York (“Western District“). Dkt. No. 4 (the “Transfer Order“); see also
In a Decision and Order filed on August 29, 2016 (“August Order“), Senior United States District Judge Frederick J. Scullin reviewed the pleadings and directed the Clerk of the Court to combine copies of the Complaint, see Dkt. No. 2, and the first supplemental Complaint, see Dkt. No. 13, as the Amended Complaint.15 Dkt. No. 15 at 12. Polizzi was
directed to respond to the Fourteenth Amendment due process and ADA claims. Id. In the Amended Complaint, Young seeks monetary damages and injunctive relief ordering Defendant to release him from the SHU. Am. Compl. at 25.
On February 23, 2018, Defendant filed the within motion pursuant to
III. DISCUSSION16
In the Amended Complaint, Young alleges that Polizzi (1) violated his Fourteenth Amendment Due Process rights during the disciplinary hearing; and (2) discriminated against him in violation of Title II of the ADA.17 See Am. Compl. at 22-25. Defendant contends that Young (1) was not deprived of a protected liberty interest; (2) was afforded due process; and (3) was not denied the opportunity to participate in or benefit from services, programs, or activities based upon his disability. See Dkt. No. 48-1, generally. Alternatively, Defendant claims that Young failed to exhaust his administrative remedies with respect to the ADA claim. See id.
A. Legal Standard
A motion for summary judgment may be granted if there is no genuine issue as to any
The party opposing the motion must set forth facts showing that there is a genuine issue for trial, and must do more than show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). For a court to grant a motion for summary judgment, it must be apparent that no rational finder of fact could find in favor of the non-moving party. Gallo v. Prudential Residential Servs., Ltd. P‘ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1998).
Where, as here, a party seeks judgment against a
[t]here are many cases in which we have said that a
pro se litigant is entitled to “special solicitude,” . . . that apro se litigant‘s submissions must be construed “liberally,” . . . and that such submissions must be read to raise the strongest arguments that they “suggest,“. . . At the same time, our cases have also indicated that we cannot read intopro se submissions claims that are not “consistent” with thepro se litigant‘s allegations, . . . or arguments that the submissions themselves do not “suggest,” . . . that we should not “excuse
frivolous or vexatious filings by
pro se litigants,” . . . and thatpro se status “does not exempt a party from compliance with relevant rules of procedural and substantive law,“. . .
Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir. 2008).
B. Fourteenth Amendment
The Due Process Clause of the Fourteenth Amendment states: “[n]o State shall . . . deprive any person of life, liberty, or property without due process of law.”
1. Liberty Interest
An inmate has a protected liberty interest in being free from segregated confinement but only where the alleged deprivation imposed amounts to an “atypical and significant hardship in relation to the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 483-84 (1995). “Factors relevant to determining whether the plaintiff endured an ‘atypical
Here, Young alleges that he was confined in the SHU for 120 days18, which is within an intermediate disposition. As such, the length of time itself cannot determine that the confinement was atypical and significant. Therefore, the Court must determine if this confinement was atypical and significant by comparing the conditions of Young‘s SHU confinement with ordinary prison conditions. See Vasquez v. Coughlin, 2 F. Supp.2d 255, 259 (N.D.N.Y. 1998). In this regard, Young was also penalized with a loss of packages,
2. Procedural Due Process
Even assuming that Young established that he was deprived of a protected liberty interest, he has failed to demonstrate that such deprivation occurred without due process of law. The due process protections afforded an inmate do not equate to “‘the full panoply of rights’ due to a defendant in a criminal prosecution.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (quotation omitted).
Nevertheless, an inmate is entitled to advance written notice of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and present
documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken.
Id. (citing Wolff v. McDonnell, 418 U.S. 556, 563-67 (1974)).
a. Written Notice
In this case, the issue of written notice is undisputed. An inmate must be provided advance written notice at least twenty-four hours before the hearing commences. Wolff, 418 U.S. at 563-64. On December 17, 2015, Young received the misbehavior report authored by Menard. Young Dep. at 15-16. The disciplinary hearing commenced on December 21, 2015. As such, Young was provided with written advance notice. Sira, 380 F.3d at 69.
b. Opportunity to Call Witnesses and Present Documentary Evidence
An accused prisoner has the right to a hearing where he is given the reasonable opportunity to call witnesses and present documentary evidence. Sira, 380 F.3d at 69. Young did not indicate to Polizzi or any prison official prior to the hearing, that he intended or sought to call any witnesses or present any documentary evidence.19 Young Dep. at 25-33. At the commencement of the hearing, Young told Polizzi that he did not have any witnesses to call or documents/evidence to present. Young Dep. at 33; Polizzi Decl. at 29. During the hearing, Sgt. Menard testified, via telephone, in Young‘s presence. Polizzi Decl.
c. Fair and Impartial Hearing Officer
Prisoners have a constitutional right to a fair and impartial hearing officer. Sira, 380 F.3d at 69. However, “[t]he degree of impartiality required of prison officials does not rise to the level of that required of judges . . . [as i]t is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts.” Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citations omitted). The Supreme Court held “that the requirements of due process are satisfied if some evidence supports the decision by the [hearing officer] . . .” and the Second Circuit has held that the test is whether there was “‘reliable evidence’ of the inmate‘s guilt.” Luna v. Pico, 356 F.3d 481, 487-88 (2d Cir. 2004); see also Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985).
Prison officials serving as hearing officers “enjoy a rebuttable presumption that they are unbiased.” Allen, 100 F.3d at 259. “Claims of a hearing officer bias are common in [inmate section] 1983 claims, and where they are based on purely conclusory allegations, they are routinely dismissed.” Washington v. Afify, 968 F. Supp.2d 532, 541 (W.D.N.Y. 2003) (citing cases). “An inmate‘s own subjective belief that the hearing officer was biased is insufficient to create a genuine issue of material fact.” Johnson v. Fernandez, No. 09-CV-626 (FJS/ATB), 2011 WL 7629513, at *11 (N.D.N.Y. Mar. 1, 2011) (citing Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989)).
Even though Young‘s guilty determination was modified, there is no clear evidence that Polizzi was not a fair and impartial hearing officer. According to Venettozzi, the determination was modified to afford Young the opportunity to “improve his behavior and to refrain from re-offending.” Venettozzi Decl. at ¶46. Accordingly, although Polizzi reached a different outcome from what Young may have preferred, the record is clear that there is no question of material fact regarding bias.
Young voluntarily refused to attend the last day of his disciplinary hearing. Polizzi Decl. at 19, 37-38. The undisputed evidence establishes that Young received a written statement of the evidence relied upon and reasons for the disciplinary action. Young Dep. at 38.
e. Inmate Assistance
“An inmate‘s right to assistance with his disciplinary hearing is limited.” Neree v. O‘Hara, No. 9:09-CV-802 (MAD/ATB), 2011 WL 3841551, at *13 (N.D.N.Y. July 20, 2011) (citing Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993)). This Circuit has held that an assistant is constitutionally necessary when the plaintiff is confined in SHU and unable to marshal evidence and present a defense. Id. (citation omitted). In such a case, the assistant need only perform what the plaintiff would have done but need not go beyond the inmate‘s instructions. Lewis v. Johnson, No. 08-CV-482 (TJM/ATB), 2010 WL 3785771, at *10 (N.D.N.Y. Aug. 5, 2010) (citing Silva, 992 F.2d at 22). Furthermore, “any violations of this qualified right are reviewed for ‘harmless error.‘” Clyde v. Schoellkopf, 714 F. Supp.2d 432, 437 (W.D.N.Y. 2010) (citing Pilgrim v. Luther, 571 F.3d 201, 206 (2d Cir. 2009)).
Here, Young was confined in SHU and thus, was entitled to an inmate assistant. At the commencement of the hearing, Polizzi inquired:
Q. The record also indicates that you meet [sic] with your assistant Officer Meinecke Jr. on 12/18/15 at 10:20 a.m., correct?
A. Yes.
Polizzi Decl at 27. At Young‘s deposition, he testified that he selected an inmate assistant,
Even assuming Young‘s recent version of events as true, if he were deprived of adequate assistance, such a deprivation was rendered harmless and a factfinder could not conclude that Young was prejudiced as a result. Gallo, 22 F.3d at 1223-24. As discussed
f. Interpreter and Recording
Although Young claims that he vocalized his objection to Gibson‘s translation during the hearing, there is no support for this self-serving statement in the record. Polizzi and Gibson state that Young did not object or indicate that he had difficulty with the translation services during the hearing. Gibson Decl. at ¶ 14; Polizzi Decl. at ¶ 46. The hearing transcript, which is attached as an Exhibit to Polizzi‘s Declaration, supports their claim. Polizzi Decl. at 27. Even assuming Young objected to Gibson‘s translation, the record before the Court does not demonstrate that Young was unable to understand the charges against him or meaningfully participate in the hearing to support a due process violation. Gibson is fluent and certified in ASL. Gibson Decl. at ¶ 4, 6. Beginning in June 2015, Gibson provided translation services for Young on “numerous occasions.” Id. at ¶ 5. Gibson was present during the disciplinary hearing to provide translation services for Young. Id. at ¶ 12; Young Dep. at 20. During the hearing, through Gibson, Young entered a plea, answered questions
With respect to Young‘s claims regarding the recording of the hearing, Polizzi recorded the entire Tier III disciplinary hearing pursuant to
In sum, because Young fails to demonstrate that his procedural due process rights were violated during the disciplinary proceedings, as he received notice of the charges
D. ADA20
Title II of the ADA states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
To state a claim under the ADA, an inmate must demonstrate that
(1) he or she is a “qualified individual with a disability“; (2) he or she is being excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his or her disability; and (3) [the facility that] provides the service, program or activity is a public entity.
Clarkson v. Coughlin, 898 F.Supp. 1019, 1037 (S.D.N.Y. 1995);
1. Claim for Monetary Relief
Case law provides that an individual cannot be named as a defendant in ADA suits either in their official or representative capacities for monetary damages. See Garcia v. S.U.N.Y. Health Sci. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001); see also McFadden v. Roy, Nos. 9:03-CV-0931 (GTS/DRH), 9:04-CV-0799 (GTS/DRH), 2009 WL 799968, at *21 (Mar. 25, 2009); see also Alster v. Goord, 745 F.2d 317 (S.D.N.Y. 2010) (holding that the appropriate party in interest for a plaintiff‘s claims against individual defendants in their official capacities is the state itself). Thus, Young‘s ADA claim for monetary damages against Polizzi should be dismissed.
2. Claim for Injunctive Relief
Construing the Amended Complaint liberally, Young seeks an injunction ordering that he be released from the SHU. Am. Compl. at 11, 25. Claims for prospective injunctive
With respect to the third element of an ADA claim, the Court must determine “whether, a plaintiff with disabilities ‘as a practical matter,’ was denied ‘meaningful access’ to services, programs, or activities to which he or she was ‘legally entitled.‘” Wright v. N.Y. State Dep‘t of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (citing Henrietta D., 331 F.3d at 272). “A reasonable accommodation must provide effective access to prison activities and programs.” Id. at 73 (citation omitted). “Although a public entity must make ‘reasonable accommodations,’ it does not have to provide a disabled individual with every accommodation he requests or the accommodation of his choice.” McElwee v. Cty. of Orange, 700 F.3d 635, 641 (2d Cir. 2012). “[T]he plaintiff bears the initial burdens of both production and persuasion as to the existence of an accommodation” that is “facial[ly] reasonable[ ].” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Sci., 804 F.3d 178, 190 (2d Cir. 2015).
As discussed
Young entered a plea and answered several questions regarding the Christmas card, check-list, cartoon, and notes that he wrote to Inmate John Doe. Polizzi Decl. at 29. Young was also able to pose questions to Menard during the proceeding. Id. at 33-35. The record further establishes that, as a result of a prior request for a “reasonable accommodation,” Young had a hearing aid.22 Young Dep. at 63. Young also testified that he was not precluded from participating in any programs within the facility due to his disability. Id. The record lacks any evidence suggesting that Young was unable to communicate through the sign language interpreter during the disciplinary hearing. Additionally, although the hearing was not video recorded, Young was provided with a written disposition and timely filed an appeal. Venettozzi Decl. at ¶ 42.
Although Young may have preferred a different interpreter or means of documenting the hearing, Polizzi did not violate the ADA by failing to provide Young with the
Young summarily claims that Polizzi discriminated against him based upon his race and disability. Am. Compl. at 24-25; Young Dep. at 49. Young‘s claims are unsupported by the record and contradicted by his own deposition testimony. Young alleged that “all officers” discriminated against him, but admitted that Polizzi did not make any statements that Young considered discriminatory during the course of his disciplinary hearing. Id. at 52.
Ultimately, the record is devoid of evidence indicating that, by reason of his alleged impairment, Young was denied assistance for marshaling his defenses during the disciplinary hearings. Thus, despite his conclusory allegations, Young was provided with reasonable accommodations for any shortcomings that Young felt he faced in the disciplinary hearings. Accordingly, because Young has failed to establish that he was excluded from participation in, or denied access to, a program, or that he was wrongfully denied a reasonable accommodation, it is recommended that Defendant‘s Motion for Summary Judgment on this ground be granted.23
WHEREFORE, based on the findings set forth above, it is hereby:
RECOMMENDED, that Defendant‘s motion for summary judgment (Dkt. No. 48) be GRANTED; and it is
ORDERED, that copies of this Report-Recommendation and Order be served on the parties in accordance with the Local Rules.
Pursuant to
IT IS SO ORDERED.
Dated: July 11, 2018
Albany, New York
Christian F. Hummel
U.S. Magistrate Judge
Notes
Summary Judgment Motions
Any motion for summary judgment shall contain a Statement of Material Facts. The Statement of Material Facts shall set forth, in numbered paragraphs, each material fact about which the moving party contends there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the fact is established. The record for purposes of the Statement of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions and affidavits. It does not, however, include attorneys’ affidavits.
The opposing party shall file a response to the Statement of Material Facts. The non-movant‘s response shall mirror the movant‘s Statement of Material Facts by admitting and/or denying each of the movant‘s assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises. The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert. The non-movant‘s response may also set forth any additional material facts that the non-movant contends are in dispute. Any facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party.
N.D.N.Y. L.R. 7.1(a)(3).