United States District Court, W.D. New York
June 3, 2005.
KIERAN GOMEZ, 03-B-1424, Plaintiff,
MICHAEL HOLM, LT. McCULLY, SUPT. JAMES MORRISSEY, Defendant.
The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge
MEMORANDUM and ORDER
Plaintiff, Kieran Gomez, an inmate of the Butler Correctional
Facility, has filed this pro se action seeking relief under
42 U.S.C. § 1983 (Docket No. 1) and has both requested permission to
proceed in forma pauperis and filed a signed Authorization
(Docket No. 2). Plaintiff claims that the defendants, Michael
Holm, a civilian cook at Butler, Lt. McCully, the hearing officer
who handled plaintiff's disciplinary hearing, and Superintendent
Morrissey violated his rights when he was issued an infraction
for refusing an order from Holm to "pan up trays of beef hot
dogs" and was sentenced to seven days loss of recreation and
seven days loss of commissary, package and phone privileges
following the disciplinary hearing before McCully. He also claims
that at the beginning of the disciplinary hearing he was told by
McCully in an intimidating manner that the "they" did not like
receiving a phone call from plaintiff's mother regarding the
incident and that, as a result of said intimidation at the
disciplinary hearing, he decided not to call any witnesses and
pled guilty to the charge of failing to follow staff direction.
Lastly, he claims that Morrissey told him during a conversation regarding his appeal of the disciplinary hearing
that he did not generally grant time cuts and that Morrissey
referred the appeal to the Deputy Superintendent. For the reasons
discussed below, plaintiff's request to proceed as a poor person
is granted and his due process claims are dismissed with
prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, and
service by the U.S. Marshals is ordered with respect to the
Because plaintiff has met the statutory requirements of
28 U.S.C. § 1915(a) and filed an Authorization with respect to this
action, plaintiff is granted permission to proceed in forma
pauperis. Sections 1915(e)(2)(B) and 1915A(a) of 28 U.S.C.
require the Court to conduct an initial screening of this
complaint. In evaluating the complaint, the Court must accept as
true all factual allegations and must draw all inferences in
plaintiff's favor. See King v. Simpson, 189 F.3d 284, 287 (2d
Cir. 1999). Dismissal is not appropriate "unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed.2d 80
(1957); and see Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. "To
state a valid claim under 42 U.S.C. §§ 1983, the plaintiff must
allege that the challenged conduct (1) was attributable to a
person acting under color of state law, and (2) deprived the
plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States." Whalen v. County of
Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). Based on its
evaluation of the complaint, the Court finds that plaintiff's due
process claims must be dismissed pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b) because they fail to state a claim
upon which relief may be granted.
Plaintiff's claims, when liberally construed, allege a
violation of plaintiff's First Amendment right to the free
exercise of religion and a violation of his right to due process
in relation to the disciplinary hearing and McCully's findings of
guilt. His due process claims are readily dismissible because the
"sentence" did not present "an atypical and significant
hardship." Sandin v. Conner, 515 U.S. 472, 484 (1995). Gomez
had "no right to due process [at his hearing] unless a liberty
interest" was infringed as a result. Scott v. Albury,
156 F.3d 283, 287 (2d Cir. 1998) (per curiam) (emphasis in original). A
state inmate's liberty interest is implicated by prison
discipline only if the discipline "imposes [an] atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life." Sandin v. Conner, 515 U.S. at 484.
Here, the temporary loss of recreation and other privileges is
not "atypical and significant." See Arce v. Walker,
139 F.3d 329, 336 (2d Cir 1998) (temporary denial of exercise privileges
is insufficient to establish atypicality). Accordingly,
plaintiff's due process claims against the defendants are
dismissed with prejudice, pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
With respect to plaintiff's claims that he was disciplined by
Holm and McCully as a result of the exercise of his claimed
religious beliefs not to touch "dead redblooded flesh," the Court
must accept plaintiff's allegations as true and cannot find at
this screening stage of the litigation that he can prove no set of
facts in support of his First Amendment claim. See McEachin v.
McGuiniss, 357 F.3d 197, 203 (2d Cir. 2004) ("Our cases and
those of other circuits suggest that the First Amendment protects
inmates' free exercise rights even when the infringement results
from the imposition of legitimate disciplinary measures").
As to defendant Morrissey, while simply referring a
disciplinary hearing appeal to a subordinate is generally not
sufficient to establish the requisite personally involvement
under § 1983, see Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.
1997); Scott v. Coughlin, 78 F.Supp.2d 299, 312
(S.D.N.Y.,2000), plaintiff alleges that he had a personal
discussion with Morrissey about what had occurred and that
Morrissey stated that he did not usually "grant time cuts."
Whether or not plaintiff can establish personal involvement
against Morrissey is not a question for the Court at this time
and the allegations of the complaint are at least sufficient to
allow the First Amendment claim to proceed against Morrissey
under the strictures of 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1). See McEachin, 357 F.3d at 200.
Because plaintiff has met the statutory requirements of
28 U.S.C. § 1915(a) and filed an Authorization with respect to the
filing fee, his request to proceed in forma pauperis is hereby
granted. For the reasons discussed above, plaintiff's due process
claims are dismissed in their entirety with prejudice pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A, and the U.S. Marshal is
directed to serve the summons and complaint on Holm, McCully and Morrissey regarding the
remaining First Amendment claim.
IT HEREBY IS ORDERED, that plaintiff's request to proceed in
forma pauperis is granted;
FURTHER, that plaintiff's due process claims are dismissed with
FURTHER, that the Clerk of the Court is directed to file
plaintiff's papers, and to cause the United States Marshal to
serve copies of the Summons, Complaint, and this Order upon
Michael Holm, Lt. McCully and Supt. Morrissey without plaintiff's
payment therefor, unpaid fees to be recoverable if this action
terminates by monetary award in plaintiff's favor;
FURTHER, that pursuant to 42 U.S.C. § 1997e(g)(2), the
defendants are directed to respond to the complaint.
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