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MITCHELL v. KEANE

August 19, 1997

KEVIN MITCHELL, Plaintiff, against JOHN P. KEANE, Superintendent, CHARLES GRIENER, Deputy Superintendent, Captain STARK, Lieutenant DEZAYAS, Officer BURGESS, Lieutenant WOHLRAB, Physician Assitant WILLIAMS, Sergeant LAURICELLA, Sergeant SISCO, Sergeant CORCORAN, Officer DELUTIS, Officer BUSICK, Officer GONZALES, Defendants.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 In this action brought pursuant to 28 U.S.C. ยง 1983 and the First, Eighth, and Fourteenth Amendments to the United States Constitution, pro se plaintiff Kevin Mitchell ("Mitchell") has moved for summary judgment, pursuant to Rule 56, Fed.R.Civ.P., and to amend his complaint, pursuant to Rule 15(a), Fed.R.Civ.P. Defendants John P. Keane ("Keane"), Charles Griener ("Griener"), Captain Stark ("Stark"), Lieutenant Dezayas ("Dezayas"), Officer Burgess ("Burgess"), Lieutenant Wohlrab ("Wohlrab"), Physician Assistant Williams ("Williams"), Sergeant Lauricella ("Lauricella"), Sergeant Sisco ("Sisco"), Sergeant Corcoran ("Corcoran"), Officer DeLutis ("DeLutis"), Officer Busick ("Busick"), and Officer Gonzales ("Gonzales") have moved for judgment on the pleadings dismissing Keane's complaint (the "Complaint") for failure to state a claim, pursuant to Rule 12(c), Fed. R. Civ. P.

 As set forth below, Mitchell's motions will be denied, and defendants' motion will be granted in part and denied in part.

 Parties

 Mitchell is an inmate in the custody of the New York State Department of Correctional Services ("DOCS"). At all times relevant to his Complaint, he was incarcerated at Sing Sing Correctional Facility ("Sing Sing") in Ossining, New York. He is currently incarcerated at Southport Correctional Facility ("Southport") in Pine City, New York.

 Keane was at all relevant times Superintendent of Sing-Sing. Griener was Deputy Superintendent, and the remaining defendants were corrections officers and supervisors at Sing Sing.

 Prior Proceedings

 Mitchell filed his original complaint in this action on February 17, 1995. The complaint was subsequently amended to add defendants Corcoran and Burgess. The complaint alleges that the defendants violated his constitutional rights in a series of incidents in December 1994. Specifically, he alleges that: (1) his First Amendment rights were violated by actions taken in retaliation for filing a grievance against an officer; (2) his Eighth Amendment rights were violated by the use of excessive force and failure to provide proper medical care; (3) he was punished more than once for the same infraction, in violation of his Fifth Amendment right to be free of double jeopardy; and (4) that he was deprived of his Fourteenth Amendment right to procedural due process in the hearing that led to his being placed in Involuntary Protective Custody ("IPC") and in being "denied access" to the prison grievance process.

 By order dated October 23, Mitchell's motion to amend his complaint for a second time was denied.

 Mitchell filed a motion to amend the complaint on January 17, 1997. He submitted the instant motion for summary judgment to the court on February 26, 1997. *fn1" Mitchell filed a second motion to amend his complaint on May 9, 1997. Defendants filed their cross-motion for judgment on the pleadings on May 19, 1997. Materials were received by the court through June 18, 1997, at which time all motions were deemed fully submitted. *fn2"

 Facts

 In considering a motion to dismiss on the pleadings, the court presumes the factual allegations of the complaint to be true and draws all factual inferences in the plaintiff's favor and against the defendant. See Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989); Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir. 1985). In considering a motion for summary judgment, a court must resolve all factual ambiguities and draw all reasonable inferences against the moving party. See Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.1988); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The facts set forth below are drawn primarily from Mitchell's complaint. Factual matters outside of the pleadings are so designated and are not considered in deciding defendants' motion for judgment on the pleadings.

 On December 2, 1994, Mitchell filed a grievance against DeLutis at Sing Sing. Superintendent Keane appointed Lauricella to investigate the grievance. In the morning of December 8, 1994, Lauricella interviewed Mitchell in his cell regarding the grievance. Shortly thereafter, when Mitchell was outside of his cell, DeLutis and Gonzales appeared. Gonzales allegedly told Mitchell to "clear the gallery." As Mitchell approached DeLutis and Gonzales, DeLutis allegedly screamed at him to clear the gallery and said, "That was some bullshit you wrote me up for." DeLutis allegedly obstructed Mitchell's egress from the gallery. An altercation ensued, in which DeLutis allegedly grabbed and attempted to strike Mitchell. Mitchell claims to have ducked and grabbed DeLutis' legs to protect himself. In his summary judgment submissions, Mitchell claims that a "rumble took shape" and DeLutis fell backwards down the stairs, whereupon Mitchell became frightened and ran down the gallery, pursued by DeLutis, Lauricella, Gonzales, Busick and Keleher. He was ultimately subdued by force, treated for cuts and bruises and placed in the Special Housing Unit ("SHU").

 Later in the day on December 8, 1994, Mitchell was taken to meet with officials of the Bureau of Criminal Investigation. He was placed in shackles in his cell by Burgess, who was supervised by Corcoran. Burgess allegedly placed his baton in Mitchell's shackles and twisted it, which cut off circulation to Mitchell's hands and caused bruising and severe back pain. Stark allegedly ordered that the shackles remain on despite Mitchell's pain.

 Mitchell received medical treatment from Williams, a physician's assistant at Sing Sing. He alleges that Williams refused to x-ray his back and did not fill out an injury report.

 On December 9, 1994, Mitchell received a "Tier III" misbehavior report alleging that he assaulted DeLutis. This misbehavior report was allegedly dismissed. On December 18 and 19, 1994, Mitchell alleges he received two more misbehavior reports arising from the December 8 incident. These misbehavior reports were prepared and/or signed by defendants Busick, DeLutis and Dezayas. Each report recommended that Mitchell be placed in Involuntary Protective Custody ("IPC").

 On December 16, 1994, Mitchell filed a grievance regarding these events. Between December 21 and 24, 1994, Mitchell was placed in confinement and denied commissary and exercise privileges by Sisco. Mitchell complained about his treatment to Keane on December 22, 1994. On December 24, 1994, Wohlrab presided over a protective custody hearing and determined that Mitchell should remain in IPC. Mitchell asserts that Wohlrab's decision was predetermined, but in support of this contention he alleges only that the first misbehavior report was dismissed.

 According to records submitted by defendants, the hearing results were reversed on February 27, 1997, on the grounds that Mitchell's status should have been determined in a disciplinary proceeding, rather than a protective custody hearing. All records pertaining to the hearing were ordered expunged.

 Defendants have also submitted public records documenting the subsequent trial, conviction and sentencing of Mitchell for assaulting DeLutis during the December 8, 1994 incident. He was tried in April 1996 and sentenced on October 7, 1996 in Westchester County Court.

 In his first motion to amend the complaint, Mitchell alleges that he was "set up" by prison officials and that these officials, along with unnamed members of the Attorney General's office, used the criminal prosecution to intimidate him into dropping his civil claims. He also alleges that the "authorities are promoting prison uprising, allege attempts to start racial wars, inmate against inmate, guard against inmate, destruction/death; allege [extraordinary] tactics to use family of deceased, under corruption wrongful death suit . . ." He alleges that officer DeLutis was involved in initiating the criminal prosecution, but does not identify how any of the other existing or additional defendants were involved in any of the alleged actions.

 Discussion

 I. Legal Standards

 A. Rule 12(c) Standards

 The defense of failure to state a claim, ordinarily made pursuant to Rule 12(b)(6), may also be raised in a motion for judgment on the pleadings pursuant to Rule 12(c). National Ass'n of Pharmaceutical Mfrs., Inc. v. Ayerst Laboratories, 850 F.2d 904, 909 n.2 (2d Cir. 1988); International Business Machines, Corp. v. Jennifer-Ashley Co., 872 F. Supp. 1256, 1257 (S.D.N.Y. 1995). The moving party bears a substantial burden of proof on such a motion. A court may not dismiss a complaint unless the movant demonstrates "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989); Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In determining the sufficiency of the complaint, consideration is limited to the factual allegations it contains. See Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994).

 Pro se complaints are to be construed particularly liberally on a motion to dismiss. See Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Platsky v. Central Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991). A pro se litigant's submissions are to be interpreted "to raise the ...


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