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Bordas v. Payant

January 5, 2009

HOMERO BORDAS, PLAINTIFF,
v.
LEO E. PAYANT, SUPERINTENDENT, MOHAWK CORRECTIONAL FACILITY; GULLO, SGT., MOHAWK CORRECTIONAL FACILITY; D. NORMAN, CORRECTION OFFICER, MOHAWK CORRECTIONAL FACILITY; M. MULLIN, CORRECTION OFFICER, MOHAWK CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior Judge

MEMORANDUM-DECISION AND ORDER

Plaintiff Homero Bordas, a New York State prison inmate who is proceeding pro se and in forma pauperis, commenced this civil rights action pursuant to 42 U.S.C. § 1983 seeking damages for the alleged violation of his constitutional rights. Plaintiff's claims arose during the period July through November, 2007, while he was confined at Mohawk Correctional Facility. Dkt. No. 1.*fn1

Currently pending is defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 8.

I. Background

The following facts are drawn from plaintiff's complaint and attached exhibits, and are accepted as true for purposes of the pending motion. Boykin v. Keycorp, 521 F.3d 202, 204 (2d Cir. 2008). See Erickson v. Pardus, __ U.S. __, 127 S.Ct. 2197, 2200 (2007).*fn2

On July 19, 2007, plaintiff received a misbehavior report charging him with failing to comply with a direct order and creating a disturbance. Dkt. No. 1 at ¶ 17.*fn3 That same day, plaintiff filed a grievance complaining that the misbehavior report was insufficient because it did not identify the individual with whom plaintiff allegedly engaged in a verbal dispute. Id. at ¶ 18 and A-11, 12. Defendant Superintendent Payant denied the grievance on August 8, 2007, finding no evidence of staff misconduct. Id. at ¶ 18 and A-15. Plaintiff's appeal of the denial of his grievance to the Central Office Review Committee was denied on September 19, 2007. Id. at ¶ 18 and A-16.

A disciplinary hearing was held on the July 19, 2007 misbehavior report.*fn4 Plaintiff was found guilty of both charges and sentenced to twenty days confinement in the Special Housing Unit ("SHU") and twenty days loss of privileges. Dkt. No. 1 at ¶ 19.

Plaintiff received another misbehavior report on July 21, 2007, charging him with loss of state property. Dkt. No. 1 at ¶¶ 20, 21. In that report, Defendant Correction Officer Norman stated that plaintiff's state-issued razor was not found during the inventory of plaintiff's property conducted in connection with his disciplinary SHU confinement. Id. At the hearing convened on that charge, plaintiff told the hearing officer that his razor was in his shoes. The hearing officer directed Defendant Correction Officer Mullin to look for the razor. Defendant Mullin, "after coming to an agreement" with defendant Norman, told the hearing officer that he did not find the razor. Id. at ¶ 23. Plaintiff was found guilty of the charge and was sentenced to twenty days SHU confinement and loss of privileges. Id. at ¶ 25.

On July 31, 2007, defendant Mullin issued a misbehavior report to plaintiff. This report charged plaintiff with possessing material related to an unauthorized organization. Defendant Mullin stated that two items found in plaintiff's property (a book and a photograph) had markings on them which were frequently used by unauthorized organizations. Id. at ¶ 28 and A-23.*fn5 No disciplinary hearing was ever held on this charge. Id. at ¶ 29.

Plaintiff filed a grievance on August 2, 2007, claiming that defendants Mullin and Norman wrongfully confiscated his book and photograph during the cell search because they were "unsatisfied" with having had to conduct a further search for plaintiff's razor. Plaintiff also claimed that defendants Mullin and Norman discriminated against him based upon his national origin in placing false disciplinary charges against him. Dkt. No. 1 at ¶ 30 and A-1 - A-6. Receiving no response to his grievance, plaintiff resubmitted it on September 7, 2007. Id. at ¶ 34. The grievance was denied by defendant Payant on October 1, 2007. Id. at ¶ 36 and A-7. Plaintiff's appeal to the Central Office Review Committee was denied on November 7, 2007. Id. at ¶ 42 and A-9.

On September 26, 2007, Defendant Sgt. Gullo questioned inmate Juan Martinez about plaintiff's activities. In particular, defendant Gullo asked Martinez whether plaintiff was the leader of an unauthorized organization known as "Dominican Power" or "Dominican Don't Play." Martinez told defendant Gullo that he did not know anything about plaintiff being a leader or member of an unauthorized organization. Dkt. No. 1 at ¶ 37.

Plaintiff filed his complaint on April 29, 2008, naming Superintendent Payant, Sgt. Gullo, and Correction Officers Norman and Mullin as defendants. Plaintiff claims that defendants Norman, Mullin and Gullo retaliated against him for exercising his First Amendment right to file grievances by filing false misbehavior reports against him, interfering with his outgoing legal mail, confiscating his personal property and subjecting him to restrictive confinement. Plaintiff also seeks relief as against defendant Payant, claiming that he violated plaintiff's First and Fourteenth Amendment rights when he ignored and failed to remedy the wrongdoing of his subordinates. See Dkt. No. 1 at 10-12.

In lieu of an answer, defendants moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 15. Defendants argue that the allegations of plaintiff's complaint fail to state a claim upon which relief may be granted under the First and Fourteenth Amendments. Defendants also seek dismissal of the complaint on the ...


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