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March 31, 2004.

JUAN HERNANDEZ Plaintiff, -against- GLENN S. GOORD, et al., Defendants

The opinion of the court was delivered by: SIDNEY STEIN, District Judge



This action arises out of several alleged incidents of harassment, retaliation, and conspiracy against pro se plaintiff Juan Hernandez during his incarceration at Sing Correctional Facility and Green Haven Correctional Facility. Specifically, plaintiff brings suit pursuant to 42 U.S.C. § 1983 for damages against twenty-three employees of both correctional facilities.

  Certain of the defendants — specifically, Glenn S. Goord, Charles Greiner, Noel F. Morris, Kelvin Gadson, Carol T. Caban, Robert Pagliuca, Lucien J. LeClaire Jr., Kenneth Perlman, Richard Alexis, Raymond J. Wilk, Jr., James Lawyer, and Charles Butenhoff — move to dismiss the complaint pursuant to Fed.R.Civ.P. 8 for failure to provide a short and plain statement of the claim and Rule 12(b)(6) for failure to state a claim upon which relief may be Page 2 granted. For the reasons set forth below, the motion is granted in part and denied in part.


  Plaintiff's claim of alleged harassment begins with the litigation entitled Hernandez v. Keane, brought by Hernandez in February 1997 against several Department of Correctional Services ("DOCS") employees at Sing Sing, including defendant Charles Greiner. See No. 97 Civ. 1267 (BSJ), 2000 WL16951, (S.D.N.Y. Jan. 7, 2000). In Keane, plaintiff alleged indifference to his medical needs during the treatment of a gunshot wound to his hand sustained in 1992 during an incident that led to his arrest. See Hernandez v. Keane, 341 F.3d 137, 140-41 (2d Cir. 2003). A jury trial was held in October 2000 on Hernandez' claim of medical indifference resulting in a verdict in plaintiff's favor. Following the verdict, U.S. District Judge Samuel Conti granted defendants' renewed motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50. See Hernandez v. Keane, No. 97 Civ. 1967 (SC) 2000 WL 34239139, (S.D.N.Y. Nov. 28, 2000). The U.S. Court of Appeals for the Second Circuit affirmed the district court's determination. See Hernandez, 341 F.3d at 149. Plaintiff remains in state custody as a result of his conviction for attempted murder in the second degree. See id. at 141.

  On September 3, 1998, an electrical fire occurred in Sing Sing in the cell occupied by Hernandez; plaintiff complained he lost numerous items of property and the fire was an attempt to injure him. (Compl. ¶¶ 4-5). In response, the very same day of the fire, Hernandez filed a claim at Sing Sing relating to the loss of his property during the electrical fire. (Ex. A12-A15, A49-A50). The procedures established by DOCS relating to inmate property claims, codified at Page 3 7 NYCRR § 1700.1 et. seq., set forth the claims review process and procedure for appealing the claim to the central office.

  DOCS rejected the claim at both Sing Sing and the central office on the grounds that its investigation had not established any negligence by DOCS in connection with the September 3, 1998 fire. (Ex. A68, Letter to PL from Def. Carol T. Caban ("Caban letter"), DOCS Sr. Budget Analyst, February 2, 2000). Hernandez then filed an action against the State of New York in the N.Y. Court of Claims for the value of his property that was lost in the fire. (Compl., ¶ 3, Ex. A8, A9).*fn1

  The action resulted in a trial before the Honorable Thomas H. Scuccimarra, Judge of the Court of Claims. (Judge Scuccimarra's decision dated November 29, 2001, attached to Nowve Aff. as exhibit B). At trial, Hernandez represented himself, testifying as to the events in question and introducing exhibits into evidence. (Nov. 29, 2001 Decision at 7). At the trial's conclusion, Judge Scuccimarra dismissed the claim, which alleged that the state's agents negligently allowed damage and loss of plaintiffs personal property during the September 3, 1998 cell fire at Sing Sing. (Decision; Nowve Aff., Ex. B).

  After the fire, Hernandez was transferred to another cell. The following week — on September 8, 1998 — in plaintiff's new cell, another fire occurred. Hernandez maintains Correctional Officer Harris was in the vicinity when the fire occurred and "Harris was known to set inmates cells on fire, if you were disliked by the staff." (Pl.'s Mem. Response Mot. to Page 4 Dismiss ("Response") at 7)*fn2. Plaintiff describes this fire as "an attack on Plaintiffs life." (Compl. ¶ 12). Corrections Officer Morris, also a defendant, who served as the prison's Fire and Safety Chief, reported the fire was caused by a faulty ballast — a component used to stabilize current in a light — and was not suspicious. (Exhibit A4).

  Following the second fire, Hernandez was transferred to involuntary protective custody ("IPC"), a remedy used to protect inmates at serious risk of harm from other inmates. It was determined Hernandez did not belong in protective custody because, according to Hernandez, "his problems were not with inmates of the jail. But was in fact caused by his filing claims and grievances and was with the administration and staff members." (Response at 7) (emphasis in original). Hernandez subsequently was returned to his original housing unit. Although the hearing regarding the transfer was recorded, the cassette recording currently is missing, according to Hernandez. (Compl. ¶¶ 16-17).

  An attorney representing Hernandez then sent letters to the Attorney General's office demanding that the alleged retaliatory actions be investigated and cease. Hernandez claims that the harassment and retaliation have not ceased. (Compl. ¶ 21).

  On January 25, 2000, plaintiff was moved from Sing Sing to Green Haven. He contends that the transfer was based upon untrue allegations that he had an improper "relationship" with a staff member at Sing Sing. (Compl. ¶¶ 24, 26). A few months after his transfer to Green Haven, defendant Charles Greiner became Superintendent at Green Haven. Plaintiff contends that the Page 5 acts of harassment and retaliation that allegedly took place at Green Haven — which are set forth below — occurred after Greiner became Superintendent there, were retaliatory in nature, and were motivated, at least in part, because of the Keane case, in which Hernandez had named Greiner as a defendant (Compl. ¶¶ 3, 25-27). Specifically, plaintiff alleges that "[f]rom the time Plaintiff arrived in Green Haven, till the time Mr. Greiner arrived, the plaintiff was not harassed or retaliated on. . . . Once Mr. Greiner arrived in this facility, the Plaintiff began to be harassed and retaliated on by the security staff."(Compl. ¶ 25, 28).

  On October 5, 2000, plaintiff was removed from his cell at Green Haven and placed in federal custody in order to attend the trial in Keane. (Id. ¶ 29). Plaintiff alleges that upon his return to Green Haven after the conclusion of the trial, he found a hangman's noose made of string on his bed. (Compl. ¶ 33, Ex. B17, 43). Hernandez subsequently filed a grievance about the noose; however, according to plaintiff, defendants attempted to cover-up the incident and that `that grievance mysteriously disappeared thereby denying [him] the grievance mechanism." (Compl. ¶ 34). Hernandez did successfully file numerous other grievances during this period, including a grievance about the missing grievance. (Compl. ¶¶ 28, 35).

  On March 1, 2001 Hernandez was placed in a top bunk of a double cell, which caused "more pain in his hand and wrist," which in turn required him to take an increased dose of addictive pain medication. (Compl. ¶¶ 37-40). Hernandez filed grievances and Green Haven acknowledged that an error had been made in placing him in a double cell, and directed that he be relocated to a single cell "as soon as one is available." (Ex. B28-B29, B34).

  In June 2001, Hernandez requested to examine his medical records from October 5, 2000 to March 1, 2001 and allegedly was told they were lost (Compl. ¶ 736). Plaintiff states that he Page 6 received three "bogus" misbehavior reports at Green Haven, issued on April 16, July 12, and August 6, 2001, all of which were appealed to, and affirmed by, Superintendent Greiner. (Compl. ¶¶ 42, 43). Defendant James Lawyer also allegedly told defendant Charles Butenhoff "not to give plaintiff nothing, and not let plaintiff out of his cell during the scheduled ...

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