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SOTO v. IACAVINO

United States District Court, Southern District of New York


June 4, 2003

EFRAIN SOTO, PLAINTIFF, VS. JOSEPH IACAVINO, CHAD COOPER, WILLIAM MAZZACCA, MARIE PRISCO, TERRI DALY, THOMAS MATTHEWS, DEBRA STELMACH, CLAYTON BOUTIN, AND WAYNE STRACK, DEFENDANTS.

The opinion of the court was delivered by: John S. Martin, Jr., District Judge

MEMORANDUM ORDER

Efrain Soto, a prisoner in state custody, brings this action pro se, alleging that Defendants retaliated against him for filing grievances, that he was denied certain medical treatment, and that certain of his property was destroyed by prison officials. The Defendants now move to dismiss on various grounds.

The Defendants' first argument is that the Complaint is deficient in that it does not set forth the dates of the particular events at issue with sufficient particularity to allow them to determine whether it would be appropriate for them to assert a statute of limitations defense. While it is true that specific dates are lacking, the Complaint refers to events that are documented in the records of the Department of Corrections, which are available to the Defendants. Thus, little purpose would be served by requiring Plaintiff to replead to allege these dates. If, at the close of discovery, it appears that certain claims are time barred, Defendants can then move for summary judgment.

Defendants' motion to dismiss the eighth amendment claims against the nursing staff is denied. To establish an unconstitutional denial of medical care, a prisoner must prove "deliberate indifference to [his] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 290 (1976). See also Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (The official must disregard a "substantial risk of serious harm."). In this case, Plaintiff has alleged, among other things, that he is HIV, that Defendants knew this to be so, and that they deprived him of his medication for an eight day period while he was in the SHU.*fn1 Plaintiff also has submitted documentation to the effect that such deprivation "can lead to the development of HIV mutations resistant to the medication," as well as "cross-resistance" to other medications. This, as well as his other allegations of medical indifference, state a claim that may not be dismissed at this juncture.

On the other hand, Plaintiff has not alleged sufficient facts to establish that the acts of the nursing staff were in fact acts of retaliation. "To survive summary dismissal, a plaintiff asserting First Amendment retaliation claims must advance non-conclusory allegations that establish: (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." Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001). Plaintiff has not alleged facts that would demonstrate a causal connection between his protected speech regarding the actions of various corrections officers and the nurses' failure to provide him with requested medical care.

The claims against Superintendent Strack and Deputy Superintendent Mazzucca also must be dismissed. The Complaint fails to allege that the Superintendent and the Deputy Superintendent were personally involved in any of the allegedly retaliatory actions. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) ("It is well settled in this Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'"(quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).

Plaintiff has also adequately asserted a claim of retaliatory transfer. It is well settled that a prisoner has no right to be in a particular institution. Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 2547 (1976). However, otherwise constitutional acts may be actionable if taken in retaliation for the exercise of First Amendment rights. ACLU of Maryland v. Wicomico County, Md., 999 F.2d 780, 785 (4th Cir. 1993); Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988) ("An act of retaliation for the exercise of a constitutional right is actionable under section 1983 even if the act, when taken for different reasons, would have been proper."); Haymes v. Montanye,, 547 F.2d 188 (2d Cir. 1976), cert. denied, 431 U.S. 967 (1977) (It was constitutionally impermissible to transfer in retaliation for exercise of constitutional rights.); Lowrance v. Coughlin, 862 F. Supp. 1090, 1098-99 (S.D.N.Y. 1994). In order to state such a cause of action a plaintiff must allege, as stated above, "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." Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001). Alleging the ultimate fact of retaliation in a conclusory manner is insufficient. However, a Complaint will withstand a motion to dismiss if the Plaintiff alleges "a chronology of events from which retaliation may plausibly be inferred." Cain v. Lane, 857 F.2d 1139, 1143 (7th Cir. 1988); see also Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995), cert. denied, 516 U.S. 1084 (1996); Smith v. Maschner, 899 F.2d 940, 948-49 (10th Cir. 1990); Althouse v. Hill, No. 3-02-Cv-1263-D, 2003 U.S. Dist. LEXIS 1266, *11 (N.D. Texas Jan. 29, 2003). Plaintiff in this case has alleged such a chronology and is entitled, therefore, to pursue his claims.

Defendants' motion to dismiss the claims relating to the destruction of Plaintiff's property also is denied. The Court does not construe these as due process claims, which would be subject to a motion to dismiss. Rather, Plaintiff has alleged that specific corrections officers deliberately destroyed his property in order to retaliate against him for the filing of grievances. If this is true, it states a viable claim.

Conclusion

For the foregoing reasons, Plaintiff's claims against Superintendent Strack and Deputy Superintendent Mazzucca are dismissed, as are his claims of retaliatory denial of medical care. Defendants' motion to dismiss the other allegations of the Complaint is denied.

SO ORDERED.


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