United States District Court, S.D. New York
May 2, 2005.
DAVID WILLIAMS Plaintiff,
NEW YORK CITY (THE CITY DEPT. OF CORRECTIONS); BRIAN RIORDAN (DEPUTY WARDEN OF SECURITY/B.B.K.C FACILITY); CARLIS E. THOMPSON (DEPUTY WARDEN SECURITY/G.R.V.C. FACILITY); ROGER SLATTERY (WARDEN OF G.R.V.C. FACILITY), Defendants.
The opinion of the court was delivered by: NAOMI BUCHWALD, District Judge
MEMORANDUM AND ORDER
Plaintiff David Williams ("plaintiff") brings this § 1983
action against New York City, the City's Department of
Corrections ("DOC"), and DOC officers Brian Riordan, Carlis E.
Thompson, and Roger Slattery (collectively, "defendants") seeking
compensatory and punitive damages as well as injunctive relief
for their alleged failure to provide a hearing and a hands-on
medical review after placing plaintiff on "Red I.D." status
subsequent to his arrest. The DOC uses Red I.D. status to
identify prisoners who have been found in possession of a weapon
or using a weapon in prison. As a prisoner designated with Red
I.D. status, plaintiff was placed in uncomfortable "enhanced" restraints when he was transported outside of the
prison. Plaintiff and defendants have both moved for summary
judgment. For the following reasons, plaintiff's motion is
granted in part and denied in part, and defendants' motion is
granted in part and denied in part.
In July 1997, David Williams was a pretrial detainee in the
custody of the DOC. After being in custody for approximately ten
days, corrections officers conducted a search of his cell and
found a piece of metal wedged between his locker and shelf.
Deposition Transcript of David Williams ("Pl. Dep.") at 21-22.
Corrections officials determined that the piece of metal was a
weapon and accordingly placed plaintiff on "Red I.D. status."
Inmates found to possess a weapon while in custody are
typically placed on Red I.D. status. Red I.D. status is designed
to "reduce stabbings and slashings outside of the jails in places
like courthouses." Benjamin v. Kerik, 102 F. Supp. 2d 157, 168
(S.D.N.Y. 2000), aff'd, Benjamin v. Fraser, 264 F.3d 175 (2d
Cir. 2001). When placed on Red I.D. status, an inmate wears a red
identification card that alerts corrections officers to his status. When transported outside of the jail, the inmate
is placed in enhanced restraints: a Red I.D. inmate's hands are
placed in black plastic security mitts to prevent movement; his
hands are cuffed behind him with his palms facing out, then
attached to a chain that goes around his waist; finally, a box is
often placed over the handcuffs in order to prevent moving or
On December 28, 2000, the DOC promulgated Directive #4518,
entitled "Red ID Status and Enhanced Restraint Status Due
Process" ("Directive"). Defendants' Exhibit ("Def. Ex.") E. The
Directive was adopted as a consequence of an order of Judge
Harold Baer of this Court, which required procedural requirements
for using Red I.D. Benjamin v. Fraser, No. 75 Civ. 3073 (HB),
slip op. at 2-3 (August 10, 2000). Among other provisions, the
Directive required that "[w]ithin 72 hours of service of notice
on an inmate of his or her placement into Red ID . . . Status, a
departmental Hearing Officer shall conduct a hearing for the
purpose of adjudicating all pending infractions [and] Red ID
Status." Directive at 4. The Directive also required that the
facility medical clinic be notified of all new Red I.D.
placements within twenty-four hours of initial placement. Specifically, the Directive required medical staff to
review the records of all new placements and examine them
physically, if necessary, to determine whether the enhanced
restraints were likely to have significant medical consequences.
Furthermore, the Directive required medical staff to conduct a
monthly medical review of each Red I.D. detainee to determine if
he had a serious medical problem or condition that should
preclude him from being restrained in a given manner. Directive
Between 1997 and 2002, plaintiff was in DOC custody several
times. Pl. Dep. at 34, 38-39. Each time he returned to Riker's
Island he was placed on Red I.D. status because of the 1997
infraction. Id. Plaintiff was arrested again on September 16,
2002 and sent to the Riker's Island Bernard B. Kerik Center
("BBKC") on September 17, 2002. In the late afternoon or early
evening of that day, plaintiff was informed by a captain that he
was being re-classified as a Red I.D. inmate. Id. at 43.
Subsequently, in the mid-afternoon or evening of the same day,
plaintiff claims that he was given written notice of the
reactivation of his status and that a hearing was to be provided
for him within 72 hours. Id.
Two days later, on September 19, and before Williams had
received a hearing on his Red I.D. status or a medical examination, he was transferred to the George R. Vierno Center
("GRVC"). Pl. Dep. at 44. Once at the GRVC, plaintiff was kept in
Red I.D. status without receiving a hearing, new written notice,
or a medical evaluation. Plaintiff alleges that on September 20,
he was transported to the Manhattan Criminal Courthouse and spent
between ten and fourteen hours in enhanced restraints.
Plaintiff's Amended Complaint ("Am. Compl.") Section 4A, at 1. On
September 23, a notation was made on plaintiff's medical chart
clearing him for Red I.D. status. Def. Ex. F. Plaintiff appealed
his placement in Red I.D. status on October 15, 2002 by filing a
written appeal with the Deputy Warden of Security, Carlis
Thompson. At the end of his appeal letter, plaintiff wrote, "I
would also like to add that I never received a hearing on this
matter at all." Plaintiff's Exhibit ("Pl. Ex.") 1. On October 23,
2002, Thompson replied with a written "Notice of Appeal
Determination for Red ID Status," continuing plaintiff's Red I.D.
status after a review of plaintiff's infraction history.*fn2
Pl. Ex. 2.
On November 7, 2002, plaintiff filed a grievance report through
the Inmate Grievance Resolution Committee ("IGRC"), complaining about the buses in which Red I.D. status inmates were
transported. Pl. Ex. 3. This grievance was denied by the IGRC
because it was determined to be "beyond the purview of the IGRC."
A copy of this reply was addressed to the warden of GRVC, Roger
Slattery. Pl. Ex. 3a.
Although plaintiff had been wearing a Red I.D. since he arrived
at the GRVC, on November 12, 2002, plaintiff received a "Notice
of Authorization for Initial Placement in Red ID Status"
("Placement Notice") based on "prior history contraband weapon."
Pl. Ex. 4. That same day, medical staff indicated on the medical
assessment form that, based on a review of plaintiff's medical
records, he was cleared for Red I.D. status. Pl. Ex. 6. The
following day, November 13, 2002, a hearing was held with
plaintiff present, and the hearing officer issued a written
opinion continuing plaintiff's Red I.D. status. Pl. Ex. 5. On
December 19, 2002, plaintiff was transferred out of the GRVC.
From September 17 until his transfer out of the GRVC, plaintiff
was allegedly placed in enhanced restraints five times, all for
court appearances. Only one court appearance was before plaintiff
was cleared for Red I.D. status on September 23rd. The first
four times occurred before plaintiff's November 13 hearing. Am.
Compl. Section 4A, at 1. Plaintiff was allegedly in restraints
from three to fourteen hours per day, with some breaks for lunch and time in the courtroom. Id.
Plaintiff complains that, as a result of his time in restraints,
he suffers from extensive back, neck, shoulder and arm pain,
including "numbness in wrists while in restraint gear" and
"involuntary muscle spasms in lower and upper back." Am. Compl.
Section 4A, at 2.
Plaintiff has filed suit under 42 U.S.C. § 1983, alleging a
denial of due process because of the failure to receive a timely
hearing and required medical reviews. Plaintiff seeks injunctive
relief that includes release from Red I.D. status and the
expungement of his Red I.D. status from his record; in addition,
plaintiff seeks $125,000 in compensatory damages and $125,000 in
Plaintiff has moved for summary judgment under Fed.R.Civ.P.
56; defendant opposes plaintiff's motion and has filed a
cross-motion for summary judgment.
I. Legal Standard
Summary judgment is properly granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c). The Federal Rules of Civil Procedure mandate the entry of
summary judgment "against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). In reviewing the record, we must assess "the evidence in
the light most favorable to the party opposing the motion, and
resolve ambiguities and draw reasonable inferences against the
moving party." In re Chateaugay Corp., 10 F.3d 944, 957 (2d
Cir. 1993). However, "the mere existence of a scintilla of
evidence in support of [a non-moving party's] position will be
insufficient [to defeat summary judgment]; there must be some
evidence on which the jury could reasonably find for the
[non-moving party]." Anderson v. Liberty Lobby, 477 U.S. 242,
252 (1986). See also Quarles v. General Motors Corp.,
758 F.2d 839, 840 (2d Cir. 1985) ("Mere conjecture or speculation by
the party resisting summary judgment does not provide a basis
upon which to deny the motion.")
In order to defeat such a motion, the non-moving party must
affirmatively set forth facts showing that there is a genuine
issue for trial. Anderson, 477 U.S. at 256. An issue is
"genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248
(internal quotation marks omitted).
II. Due Process Claim
Plaintiff claims that his due process rights were violated
because he did not receive a hearing within 72 hours of the
reactivation of his Red I.D. status and because he did not
receive an in-person medical examination within 48 hours of his
new Red I.D. designation. Though the Directive called for a
hearing within 72 hours of serving notice on an inmate informing
him of his placement in Red I.D. status, plaintiff did not have a
hearing until almost two months had passed from the reactivation
of his prior status. The Directive also called for medical review
of new Red I.D. placements and monthly review of the suitability
of enhanced restraints for all Red I.D. inmates, although it did
not require in person examinations, and plaintiff makes some
allegations that the medical review he received was inadequate.
We address each issue in turn.
A. Hearing Requirement
The first question that we must address is whether plaintiff
has a constitutionally protected due process right to a hearing
as outlined by the Directive.
Ordinarily, a prisoner's due process rights are analyzed under
Sandin v. Conner. 515 U.S. 472 (1995). The Sandin jurisprudence, however, and its "justification for limiting a
convicted inmate's rights . . . does not apply to pretrial
detainees." Benjamin v. Kerik, 102 F. Supp. 2d at 172. See
also Benjamin v. Fraser, 264 F.3d at 189 (affirming Benjamin
v. Kerik and noting that Sandin "specifically distinguished
pretrial detainees from convicted prisoners").
Judge Harold Baer conducted an extensive review of Red I.D.
status and the procedural safeguards required to impose it in
Benjamin v. Kerik, 102 F. Supp. 2d at 157. He concluded that
Red I.D. caused significant physical harm, and that it "ha[s] a
severe and deleterious effect on pretrial detainees tantamount to
punishment." Id. at 175. Judge Baer concluded that the
imposition of Red I.D. status requires "a prompt hearing and
periodic review and [its] use must be carefully supervised."
Id. Judge Baer then ordered the defendants to suggest
prospective relief to remedy the breach of due process. The
defendant's subsequent suggestions became the basis for the
Directive at issue in this case. Benjamin v. Fraser, No. 75
Civ. 3073(HB), slip op. (August 10, 2000). The required
procedures follow the requirements outlined in Wolff v.
McDonnell, 418 U.S. 539 (1974) before deprivations of prisoners'
liberty interests can occur: notice, a written statement of the
facts supporting the charge (to be used in the event of review), and a hearing where the prisoner is able to present witnesses and
evidence on his behalf, subject to the discretion of the prison
authorities. Wolff, 418 U.S. at 563-566.
The Second Circuit affirmed Judge Baer's determination that
pretrial detainees have a protected liberty interest in not being
assigned Red I.D. status. Benjamin v. Fraser, 264 F.3d at 190.
The Court also found that the procedures Judge Baer required
subsequent to imposing Red I.D. status now incorporated in the
Directive are entirely reasonable, satisfy pretrial detainees'
due process rights, and "extend? no further than necessary, and
[are] the narrowly drawn, least intrusive means to correct the
violation." Id., 264 F.3d at 190-91.
Because the Second Circuit concluded that the hearing
procedures approved by Judge Baer (and embodied in the Directive)
are the minimum necessary to correct the violation, the state
violates a prisoner's due process rights if the hearing
requirements of the Directive are not met. Therefore, a prisoner
can assert a claim for a violation of his due process rights when
as alleged here the procedures regarding a hearing prescribed
by Judge Baer are not followed.
B. Medical Evaluation Requirements
The second question that we must address is whether the lack of
a medical examination of which plaintiff complains violated his right to due process. Plaintiff complains that he did not
receive a hands-on medical examination following his initial
placement on Red I.D. status. The Directive, however, does not
require a hands-on medical examination. The Directive requires
that medical personnel be notified that an inmate has been
assigned to Red I.D. status within twenty-four hours of
completing the Placement Notice and then requires production of
the inmate within twenty-four hours if the medical staff decides
it needs to examine him. Directive at 8.
The basis of plaintiff's assertion that he was supposed to
receive a hands-on medical evaluation appears to be Judge Baer's
September 27, 2003 opinion and order granting in part plaintiffs'
motion to hold defendants in contempt for violation of his August
10, 2000 order regarding Red I.D. status. Benjamin v. Fraser,
2002 U.S. Dist. LEXIS 18342 at *38-*41 (S.D.N.Y. Sept. 27, 2002).
See also Plaintiff's Affidavit in Support of Motion for Summary
Judgment at 6. The opinion provided that the Benjamin
defendants would be fined when, inter alia, they failed to
provide an initial hands-on medical review within forty-eight
hours of an inmate being placed in Red I.D. and when the Deputy
Warden of Security at a facility failed to provide medical staff
with the names of Red I.D. inmates for monthly review. Benjamin
v. Fraser, 2002 U.S. Dist. LEXIS 18342 at *38-*41 (S.D.N.Y. Sept. 27, 2002). The September 27, 2002
order's provisions for fines did not, however, take effect until
after plaintiff's re-designation as Red I.D. following his arrest
on September 17, 2002, so defendants' failure to provide him with
an hands-on medical review then did not violate Judge Baer's
III. New York City Department of Corrections
Plaintiff's claims against the Department of Corrections must
be dismissed as a matter of law. It is well established that the
Department of Corrections is a non-suable entity. Chapter 17, §
396 of the New York City Charter provides that "[a]ll actions and
proceedings for the recovery of penalties for the violation of
any law shall be brought in the name of the City of New York and
not in that of any agency." "[S]uits against the DOC are suits
against a non-suable entity and are properly dismissed."
Echevarria v. Dep't of Correctional Services of New York City,
48 F. Supp. 2d 388, 391 (S.D.N.Y. 1999) (citing cases).
Therefore, defendants' motion for summary judgment with respect
to claims against the DOC is granted, and plaintiff's motion for
summary judgment with respect to those claims is denied.
IV. City of New York
In order for a municipality to be held liable for a constitutional violation, the violation must occur because of an
"official municipal custom, policy or practice which causes the
violation of the plaintiff's rights." Martin v. City of New
York, 627 F. Supp. 892, 895 (E.D.N.Y. 1985). "[A] municipality
cannot be held liable under § 1983 on a respondeat superior
theory." Monell v. New York City Dep't of Social Services,
436 U.S. 658, 691 (1978). Plaintiff must offer some evidence that the
violation occurred because of a consistent policy or practice of
the municipality, and not merely because some City employees
are alleged tortfeasors. In his cause of action against the
City, plaintiff fails to allege that a City policy caused his
rights to be violated. Indeed, plaintiff's claim is precisely the
opposite: he argues that corrections officials' failure to
follow the Directive is the reason for his alleged deprivation.
Because plaintiff has not alleged that the problem of which he
complains occurred as the result of official custom or practice,
there is no genuine issue of material fact as to this issue.
Accordingly, defendants' motion for summary judgment with regard
to claims against the City of New York is granted, and
plaintiff's motion for summary judgment with respect to those
claims is denied.
V. Defendants Riordan, Slattery, and Thompson
In order to hold an individual liable for a § 1983 violation, plaintiff must demonstrate that the defendant was
personally involved in the alleged deprivation. McKinnon v.
Patterson, 568 F.2d 930 (2d Cir. 1977). There are several ways
in which a supervisor may be deemed to have had personal
Supervisory liability under § 1983 "can be shown in
one or more of the following ways: (1) actual direct
participation in the constitutional violation, (2)
failure to remedy a wrong after being informed
through a report or appeal, (3) creation of a policy
or custom that sanctioned conduct amounting to a
constitutional violation, or allowing such a policy
or custom to continue, (4) grossly negligent
supervision of subordinates who committed a
violation, or (5) failure to act on information
indicating that unconstitutional acts were
Richardson v. Goord, 347 F.3d 431
, 435 (2d Cir. 2003) (citing
Hernandez v. Keane, 341 F.3d 137
, 145 (2d Cir. 2003)). We now
turn to examine whether there is a material issue of fact as to
the involvement of each of the named individual defendants.
A. Defendant Riordan
Plaintiff has filed a claim against Brian Riordan in his role
as the Deputy Warden of Security of BBKC, where plaintiff was
held for approximately two days. Pl. Dep. 43-44. Given the short
period of time, plaintiff cannot prove any violation of his due
process rights with regard to the mandatory 72-hour hearing while
at BBKC he simply was not there long enough to assert that his
right to a hearing was violated. Indeed, no one at BBKC can be held liable for that alleged due process
violation. Therefore, defendants' motion for summary judgment
with respect to defendant Riordan's liability for failure to
provide a hearing is granted and plaintiff's motion denied.
B. Defendant Slattery
Plaintiff has also accused Warden Roger Slattery of the GRVC of
violating his constitutional rights. Plaintiff has presented no
evidence to show that defendant Slattery had any knowledge or
involvement in the alleged denial of his due process rights. The
sole mention of Slattery's name in plaintiff'S pleadings is on
the copy Slattery allegedly received of the IGRC's response to
plaintiff that his grievance regarding the safety of the bus used
to transport Red I.D. inmates was non-grievable. Pl. Exs. 3 and
3a. There is no mention of plaintiff's alleged denial of due
process in either plaintiff's original grievance or the IGRC's
response. Therefore, plaintiff has failed to allege that Warden
Slattery was involved in or aware of plaintiff's due process
Furthermore, plaintiff has not alleged facts to support a
conclusion that Slattery was "grossly negligent" in his
"supervision of subordinates who committed a violation,"
Richardson, 347 F.3d at 435, where "gross negligence `is
conduct that evinces a reckless disregard for the rights of
others or smacks of intentional wrongdoing.'" Curley v. AMR Corp.,
153 F.3d 5, 13 (2d Cir. 1998) (citing AT&T Co. v. City of New York,
83 F.3d 549, 556 (2d Cir. 1996)). Plaintiff has not alleged any
facts that suggest Slattery could be considered grossly
negligent. Defendants' motion for summary judgment is therefore
granted and plaintiff's motion denied with regard to all claims
against defendant Slattery.
C. Defendant Thompson
Defendant Carlis Thompson was Deputy Warden of Security at the
GRVC. Plaintiff claims that defendant Thompson violated his due
process rights by failing to afford plaintiff a timely hearing.
Plaintiff has submitted evidence demonstrating that Thompson knew
or should have known that a due process violation had taken
place. Plaintiff, following the appeal procedures provided by the
Directive, submitted an appeal of his Red I.D. status on October
15, 2002, which was addressed to Thompson. The appeal argued that
plaintiff should no longer be on Red I.D. and also stated, "I
would also like to add that I never received a hearing on this
matter at all." Pl. Ex. 1. Thompson responded to this appeal in
writing and continued plaintiff's Red I.D. status without
mentioning plaintiff's claim of a denial of a hearing.
Defendants argue that it is the responsibility of the Deputy Warden of Security to review appeals of Red I.D. status, but that
it is not his responsibility to make certain that an inmate is
provided with a Placement Notice and a hearing. Defendants'
Memorandum of Law in Opposition to Plaintiff's Motion for Summary
Judgment and in Support of Defendants' Cross-Motion for Summary
Judgment at 15-16. The Directive assigns the completion of a
Placement Notice to the "area supervisor or a designated
supervisor," Directive at 3, while conducting the hearing falls
to a departmental Hearing Officer, also called an Adjudication
Captain. Id. at 3-4. The Directive makes clear, however, that
while conducting the hearing is not the responsibility of the
Deputy Warden of Security, arranging the hearing is. The
Directive explicitly delegates to the Deputy Warden of Security
the majority of responsibilities involved with the administration
of the Red I.D. program in general, and with the initiation of
hearings in particular;*fn3 many other responsibilities the Directive describes only in the passive
voice presumably fall to him as well. Furthermore, all the forms
associated with the Directive contain instructions to send the
original or a copy to the Deputy Warden of Security. Def. Ex. E.
We are persuaded that the Deputy Warden of Security is
sufficiently involved in initiating Red I.D. hearings that he is
responsible for taking action when he learns that an inmate has
not received one.
Furthermore, a supervisor may be held liable under § 1983 for
"failure to remedy a wrong after being informed through a report
or appeal." Richardson, 347 F.3d at 435 (emphasis added). It
is uncontested that plaintiff did not receive a hearing until
November 13, 2002, three weeks after Thompson's response to the
appeal. Thompson was or should have become aware that plaintiff
had not received a hearing through plaintiff's appeal. For the
foregoing reasons, plaintiff's motion for summary judgment with
respect to his due process claim against Thompson is granted and
defendants' motion for summary judgment with respect to that
claim is denied.*fn4 VI. Damages and Relief
The due process violation here, while supportable, was wholly
insubstantial. It would appear that plaintiff simply fell through
the cracks when he was transferred. Thompson's only failing was
that, after learning in the course of the appeal that plaintiff
had never received an initial post-deprivation hearing, he waited
a few weeks before remedying the situation. Thompson's delay may
have been motivated by a belief that an inmate whose appeal had
already decided agains the prisoner was not entitled to a
hearing. In any case, plaintiff's relief is limited because the
delay of his hearing was not a cause of his alleged injury.
Plaintiff has requested a variety of remedies. First, he asks
that we enjoin his Red I.D. status and expunge his record,
arguing that his current status is predicated on his 1997
infraction and should therefore be changed. While plaintiff has
stated a claim for denial of due process, he has not asserted any
facts or law that indicate his Red I.D. classification itself, as
opposed to his lack of procedural due process, is a "deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws." 42 U.S.C. § 1983. In the absence of any basis to conclude that plaintiff's Red I.D. classification
is itself in violation of the federal Constitution or laws, we
will not consider ordering the defendants to alter it.
Second, plaintiff asks that we "extinguish the [defendants']
fire of arrogance" by ordering defendants to remove their slogan
("New York City's Boldest") from all transport vehicles and "all
other existing places."
Plaintiff's Pre-Hearing Memorandum of Law in Support of United
States Constitutional Rights Violations at 17, which is attached
to plaintiff's Amended Complaint and which we treat as part of
plaintiff's Amended Complaint. This meritless request deserves no
more discussion than a denial.
Third, plaintiff seeks monetary damages. We conclude in this
regard that because plaintiff's alleged injury is not the result
of his due process violation, he may recover only nominal
damages. In Carey v. Piphus, 435 U.S. 247 (1978), the Supreme
Court examined the issue of what damages are available for a
violation of due process rights where the same consequences would
have resulted had due process been provided. In Carey, students
who claimed that they had been suspended from school without due
process filed a complaint against the school board. Id. at 248.
The Seventh Circuit had held that the students were Court is respectfully requested to close this case.
IT IS SO ORDERED.