Defendants are Allyn Sielaff, Commissioner of the New York City
Department of Corrections (the "Commissioner"), Andrew Phoenix, Warden at
Rikers Island (the Warden"), and Richard Gorbea, a social service
employee at Rikers Island ("Gorbea").
The allegations set forth in the complaint are as follows. On October
10, 1990, at Rikers Island where plaintiff is incarcerated, defendant
Gorbea, and another officer at Rikers Island, Bailey, who is not a
defendant, informed Cruz that a family tragedy had occurred. Bailey and
Gorbea allowed Cruz to call his family members, including Cruz's aunt,
Ada Garcia, who informed Cruz that his uncle, Freddie Garcia, had passed
away. Ada Garcia then asked to speak to Gorbea. Cruz heard Gorbea say to
her that he and the City of New York did not permit inmates to go to
funerals. After the phone call, Gorbea told Cruz that he was sorry but
that was all he could do within the powers of his office. Cruz alleges
that this latter statement was untrue (a municipal directive permits
inmates to attend some funerals) and that Gorbea unlawfully deprived him
of his chance to attend his uncle's funeral.
"[O]n a 12(b)(6) motion, the complaint should not be dismissed `unless
it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.'" Bass v.
Jackson 790 F.2d 260, 262 (2d Cir. 1986), quoting Hughes v. Rowe,
449 U.S. 5, 10, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980). Pro se
complaints are held to "less stringent standards than formal pleadings
drafted by lawyers" for the purpose of a motion to dismiss under
Fed.R.Civ.P. 12(b)(6). Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct.
594, 595-96, 30 L.Ed.2d 652 (1972). See also Hughes v. Rowe, 449 U.S. 5,
9, 101 S.Ct. 173, 175-76, 66 L.Ed.2d 163 (1980); Elliott v. Bronson,
872 F.2d 20, 21 (2d Cir. 1989). A pro se complaint is to be liberally
read when it implicates vindication of civil rights or civil liberty.
Nilsson v. Coughlin, 670 F. Supp. 1186, 1188 (S.D.N.Y. 1987).
Accordingly, the issue is whether the complaint may be read to state a
claim under 42 U.S.C. § 1983, assuming arguendo that Cruz's
allegations are true.
To plead a cause of action under 42 U.S.C. § 1983, Cruz must set
forth facts showing that defendants (1) deprived him of a right,
privilege, or immunity as secured by federal or constitutional law, Baker
v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695-96, 61 L.Ed.2d 433
(1979), and (2) did so either intentionally or with deliberate
indifference. Morales v. New York State Dep't of Corrections, 842 F.2d 27,
30 (2d Cir. 1988) (interpreting 42 U.S.C. § 1983).
Cruz alleges that Gorbea intentionally lied to him, and that he was
thereby deprived of his "chance of saying farewell" to his uncle. Cruz
also alleges deliberate indifference on the part of Gorbea. The complaint
fails to make clear in what way Gorbea's actions, or any harm arising
from them, would constitute a violation of either federal or
constitutional law. The complaint does not mention the Commissioner or
the Warden in any way.
Cruz's complaint is apparently based on a municipal directive which
permits the New York City Department of Corrections to allow inmates to
attend the funerals of certain relatives. (See New York City, N.Y.,
Dept. of Correction Directive Classification No. 4012, (Apr. 1, 1979 and
revision, July 1, 1979) annexed to Memorandum in Support of Defendants'
Motion to Dismiss as Appendix D). Violation of a state or local law,
however, is not in itself sufficient to constitute a violation under
42 U.S.C. § 1983. In Samuels v. Dep't of Corrections, 548 F. Supp. 253,
255 (E.D.N.Y. 1982), the court found that when, during his incarceration
as a pretrial detainee, Samuels was not allowed to visit his sick wife or
attend his children's wake, "[t]he right violated [was] secured under
municipal, not federal, law and so, not protected by § 1983 of the
Civil Rights Act." The Samuels court granted defendants' motion for
judgment on the pleadings pursuant
to Fed.R.Civ.P. 12(c) and 12(h)(2). Id. at 255.
A prisoner's rights are only protected in a Section 1983 action if they
are "protected liberty interests" within the meaning of the
Constitution. Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986). A
prison inmate may "not be deprived of a protected liberty interest without
due process of law." Id. Attending the funeral of one's relative is not a
fundamental right protected by the Constitution or federal law. Colon v.
Sullivan, 681 F. Supp. 222, 223 (S.D.N.Y. 1988) (case dismissed under
Fed.R.Civ.P. 12(b)(6) because denying inmate permission to attend
grandmother's funeral did not deny a liberty interest protected by
Constitution). Accordingly, Cruz, an inmate at the time of the alleged
violation, does not have a federal right recognizable under
42 U.S.C. § 1983 to attend a funeral.
A state may confer rights on prisoners which are "enforceable liberty
interests in the prison setting." Kentucky Dep't of Corrections v.
Thompson, 490 U.S. 454, 461, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506
(1989). If a state or local directive is to be viewed as creating a
protected liberty interest in the prison context, it must use "explicitly
mandatory language," Kentucky Dep't of Corrections, 490 U.S. at 463, 109
S.Ct. at 867 (quoting Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864,
871-72, 74 L.Ed.2d 675 (1983)), in "placing substantive limitations on
official discretion." Id., 490 U.S. at 462, 109 S.Ct. at 866-67 (quoting
Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d
813 (1983)). I.e., the directive must require "that a particular result
is to be reached upon a finding that the substantive predicates are met."
Kentucky Dep't of Corrections, 490 U.S. at 463, 109 S.Ct. at 867. In
plaintiff's case, the municipal directive does not contain such
substantive limitations. The City of New York provides a list of
relatives whose funerals inmates shall be allowed to attend, and "uncles"
are not included in this list.
An inmate shall be permitted to attend either the
funeral or the viewing within the City of New York of
deceased parents, parents-in-law, grandparents,
brothers, sisters, guardians and former guardians,
children, grandchildren, stepchildren, spouses,
including common law spouse and, at the discretion of
the Commissioner, or a designee, other people with
whom the inmate has a significant relationship.
(New York City, N.Y., Dept. of Correction Directive Classification No.
4012 at 1-2 (Apr. 1, 1979 and revision, July 1, 1979)) (emphasis added).
See Samuels v. Dep't Correction, N.Y.C., supra, 548 F. Supp. at 255.
Instead, an uncle may be treated as one of the "other people with whom
the inmate has had a significant relationship," and attendance at an
uncle's funeral is only granted at the discretion of the Commissioner or
his designee. Id. at 2. The New York directive places no substantive
limitations on the Commissioner's discretion, so attendance at an uncle's
funeral is not a protected liberty interest.
Accordingly, Cruz has failed to state a claim upon which relief may be
granted, and the complaint against Gorbea is dismissed.*fn1
The only claim against the Commissioner and the Warden that Cruz could
be alleging is a failure to exercise supervisory liability. Since the
Commissioner and the
Warden are not alleged to have been personally involved, the complaint
against them is also dismissed. Gill v. Mooney, 824 F.2d 192 (2d Cir.
1987) (dismissal of a § 1983 action against prison superintendent
because no personal involvement was alleged).*fn2
For the reasons stated above, defendants' motion to dismiss the
complaint pursuant to Rule 12(b)(6) is granted and the complaint is
dismissed as to all of the defendants.