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GRAHAM v. HENDERSON

July 19, 2004.

PATRICK GRAHAM, Plaintiff,
v.
ROBERT J. HENDERSON, HANS WALKER, VINCENT MAHUNIK, MICHAEL A. VASQUEZ, MARY BETH CIASCHI PETHYBRIDGE, GARY ANTHONY, WILLIAM A. GABAK, Defendants.



The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge

MEMORANDUM — DECISION AND ORDER

Plaintiff, Patrick Graham, an inmate in the New York State Corrections System, alleges a violation of his civil rights under 42 U.S.C. § 1983 against defendants, including Charles Ciaschi and John Nelson Decker. Plaintiff moves pursuant to Rule 25(a) of the Federal Rules of Civil Procedure: (1) for an Order substituting Mary Beth Ciaschi Pethybridge, distributee and Voluntary Administrator of the Estate of Charles Ciaschi, for defendant Charles Ciaschi; (2) an Order substituting Jeanne Decker, wife of deceased defendant John Nelson Decker, for John Nelson Decker; and, (3) an Order amending the caption to reflect these changes.

  BACKGROUND

  I. Impetus for the Case

  On or about June 1989, staff at the Auburn State Prison (the "Prison"), where plaintiff was incarcerated, decided to remove the showers from the industrial area where inmates, including plaintiff, produced various furniture. The proposed removal of the showers was a point of contention between the Prison's staff and its inmates. Inmates sought to persuade officials at the Prison to reconsider their decision to remove the showers and engaged in a series of meetings with them in June 1989 to this effect. The inmates continued to pursue their position by initiating a claim through the institutional grievances process as established by prison protocols. Plaintiff submits that his participation in these activities, as the Shop Representative for his work area, was noteworthy. When the inmates' efforts failed to elicit the desired result, approximately seventeen of them, following plaintiff's lead, filed grievances against the shower removal. Contemporaneously, plaintiff petitioned the New York State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules for certain relief, including an injunction to prevent officials at the Prison from removing the showers. Thereafter, the Inmate Grievance Resolution Committee ("IGRC") met with plaintiff at his work area to investigate his grievance. The IGRC asked plaintiff to aid in its investigation by recording, from among the group of inmates having filed grievances, the names of those who wished to represent the group, for given the similarity of the grievances, they were to be consolidated. Plaintiff complied with the IGRC's requests and spoke with several inmates to this effect. Plaintiff directed those inmates who wished to participate as representatives to write their name, DIN number, and prison cell location on a pad of paper.

  According to plaintiff, defendant Gabak observed plaintiff collecting information and accused him of circulating a petition. Defendants Gabak and Vasquez, allegedly directed defendants Ciaschi and Decker to file misbehavior reports against Graham for the alleged circulation of a petition as a pretext for urging a work slow-down. Plaintiff alleges that defendants were creating a subterfuge to retaliate against him for spearheading the movement to oppose the removal of the showers. As a result of the misbehavior reports, the Prison's staff conducted a Tier III disciplinary hearing where defendant Mahunik sentenced plaintiff to 180 days in the Special Housing Unit ("SHU"). Plaintiff characterized Mahunik's conduct as particularly egregious in view of Corrections Law § 138(4) which states: "Inmates shall not be disciplined for making written or oral statements, demands, or requests involving a change of institutional conditions, policies, rules, regulations, or laws affecting an institution." Plaintiff asserts a claim under 42 U.S.C. § 1983 against defendants, as employees of the New York State prison system acting under color of state law, for the alleged retaliation against him — 180 days in the SHU — for exercising his First Amendment rights.

  Plaintiff pursued his § 1983 action pro se for more than a decade, including the appeal of its dismissal to the United States Court of Appeals for the Second Circuit. In July 2002, however, the court appointed trial counsel for plaintiff.

  II. Motion to Substitute

  Plaintiff received defendants' pre-trial papers on September 18, 2002, which informed him that defendants Ciaschi and Decker were deceased. See Dkt. No. 146, Brennan Aff. at ¶ 4. According to the New York State Attorney General's Office*fn1 ("the State"), Ciaschi died on April 30, 1995, and Decker died on April 15, 1997. See Dkt. No. 146, Brennan Aff. at ¶ 4. Counsel for defendants failed to notify plaintiff of the deaths of these defendants. See id. at ¶ 6. Plaintiff's counsel contacted the Attorney General's Office and requested information on the personal representatives of the decedents, but the Attorney General's Office indicated that the State was not in possession of that information. See id. at ¶ 7. On November 4, 2002, the Attorney General's Office filed a "Suggestion of Death" on the record as required for each decedent by Rule 25(a) of the Federal Rules of Civil Procedure. See id. at ¶ 8. Plaintiff's counsel avers upon information and belief that Decker died intestate and that no action was taken in the Cayuga County Surrogate's Court. He is survived by his wife Jeanne Decker, whom plaintiff alleges is a distributee of his estate. See Dkt. No. 146, Brennan Aff. at ¶ 10. Counsel similarly avers upon information and belief that Ciaschi is survived by his wife Mary Beth Ciaschi who was a distributee of his estate and served as a Voluntary Administrator of the estate. See id. at ¶ 11. Mary Beth Ciaschi has since remarried and is now known as Beth Pethybridge. See Dkt. No. 145, Pl.'s Mem. of Law in Supp. of Mot. at 1. The New York State Attorney General has filed an appearance on behalf of Jeanne Decker and Beth Pethybridge who, in addition to the remaining defendants, oppose plaintiff's motion.

  DISCUSSION

  I. Survivability of Plaintiff's Claim Under 42 U.S.C. § 1983

  A. In General

  Plaintiff's claim arises under 42 U.S.C. § 1983. In determining whether a claim brought under 42 U.S.C. § 1983 survives the death of a defendant, the court must consider the law of the state in which the action arose. See Blissett v. Eisensmidt, 940 F. Supp. 449, 457 (N.D.N.Y. 1996) (McCurn, S.J.) (citing Barrett v. United States, 651 F. Supp. 604, 605 (S.D.N.Y. 1986)). Here, the relevant statute is New York Estates, Powers and Trusts Law ("EPTL") § 11-3.2(a)(1), which states, in pertinent part, that "[n]o cause of action for injury to person or property is lost because of the death of the person liable for the injury. For any injury, an action may be brought or continued against the personal representative of the decedent . . ."

  The State argues that only "personal injury" claims will survive the death of a defendant. See Dkt. No. 149, Def.'s Mem. of Law in Supp. of Mot. at 9-10. The State argues that when New York EPTL § 11-3.2(a)(1) makes mention of "injury to person," the definition of "personal injury" offered in New York Gen. Constr. Law, § 37-a is applicable. The definition reads as follows: "Personal injury" includes libel, slander and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another. New York Gen. Constr. Law, § 37-a. The State argues that this definition is all-inclusive and because there is no mention of 42 U.S.C. § 1983 retaliation claims, such claims do not survive the death of a defendant. The court disagrees.

  In Blissett, the court assumed, without explanation, that the plaintiff's § 1983 claim for excessive force in violation of the Eighth Amendment survived the death of a named defendant (a correctional officer at a correctional facility). See Blissett, 940 F. Supp. at 457. Because the § 1983 claim at issue was not based on retaliation, the court made no mention of personal injury being required for survival of the § 1983 claim, nor did it note that retaliation claims cannot survive the death of a named defendant. See id. In Barrett, the court held that § 1983 claims can survive the death of both the defendant and the plaintiff. See Barrett, 651 F. Supp. at 605-606. In Pratt v. Bernstein, 553 F. Supp. 110, 117 (S.D.N.Y. 1981), the court held that § 1983 claims for personal injury will survive the death of the person liable. The court did not hold that only § 1983 claims for personal injury will survive the death of the person liable, nor did they hold that § 1983 claims for retaliation do not survive the death of the defendant. See Pratt, 553 F. Supp. at 117.

  Although there is no case law available specifically holding that § 1983 retaliation claims survive the death of the person liable, there is no case law to the contrary. Furthermore, other types of § 1983 claims have survived the death of the defendant. For instance, in Swiggett v. Coombe, 2003 WL 174311, at * 1-3 (S.D.N.Y. January 27, 2003), the court impliedly held that a state prison inmate could have substituted parties where the defendant prison officials had passed away prior to the conclusion of a § 1983 due process claim had the plaintiff timely filed the motion to substitute and named the proper parties for substitution. Courts have also held that other § 1983 claims survive the death of the plaintiff. See Javits v. Stevens, 382 F. Supp. 131 (S.D.N.Y. 1974) (holding that ...


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