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Vega v. Artus

March 26, 2009


The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge


Plaintiff Alex Vega ("Plaintiff") commenced this pro se prisoner civil rights action pursuant to 28 U.S.C. § 1983 ("Section 1983") alleging that ten employees of the New York State Department of Correctional Services ("Defendants") violated his rights under the United States Constitution while he was incarcerated at Clinton Correctional Facility. Dkt. No. 1. Generally, in his Amended Complaint, Plaintiff alleges that he was harassed and discriminated against by Defendants because of what Defendants perceived to be Plaintiff's sexual orientation. Dkt. No. 30. Plaintiff also alleges that, after he filed grievances regarding the harassment and discrimination, Defendants retaliated against him by filing false misbehavior reports, holding him back from his job on multiple occasions, denying his request for inmate legal assistance, and threatening to transfer him out of protective custody and into general population at another correctional facility. Id. Finally, Plaintiff alleges that Defendants conspired to deny Plaintiff his constitutional rights. Id. Currently before the Court*fn1 is Defendants' motion for judgment on the pleadings / motion to dismiss for failure to state a claim.*fn2

Dkt. No. 58; see also Dkt. Nos. 43, 50, and 52.*fn3 For the reasons set forth below, Defendants' motion is granted in part and denied in part.


After the pleadings are closed, a motion to dismiss for failure to state a claim under FED. R. CIV. P. 12(b)(6) is properly brought as a motion for judgment on the pleadings pursuant to FED. R. CIV. P. 12(c). Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir. 1983) [citations omitted]; see also FED. R. CIV. P. 12(b), 12(c). However, the motion for judgment on the pleadings is then decided according to the same standard as is a motion to dismiss for failure to state a claim. Id.

It has long been understood that a defendant may base a motion to dismiss for failure to state a claim on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga County, 549 F. Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review) [citations omitted].

With regard to the first ground, FED. R. CIV. P. 8(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2) [emphasis added]. By requiring this "showing," FED. R. CIV. P. 8(a)(2) requires that the pleading contain a short and plain statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Jackson, 549 F. Supp.2d at 212, n.17 [citations omitted]. The main purpose of this rule is to "facilitate a proper decision on the merits." Id. at 212, n.18 [citations omitted].*fn4

The Supreme Court has long characterized this pleading requirement under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal," and has repeatedly rejected judicially established pleading requirements that exceed this liberal requirement. Id. at 212, n.20 [citations omitted]. However, even this liberal notice pleading standard "has its limits." Id. at 212, n.21 [citations omitted]. As a result, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet this liberal notice pleading standard. Id. at 213, n.22 [citations omitted].

Most notably, in Bell Atlantic Corporation v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corporation v. Twombly, 127 S.Ct. 1955 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim 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." Twombly, 127 S.Ct. at 1968-69. Rather than turning on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." Id. at 1965 [citations omitted]. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id. [citations omitted].*fn5

As have other Circuits, the Second Circuit has recognized that the clarified plausibility standard that was articulated by the Supreme Court in Twombly governs all claims, including claims brought by pro se litigants (although the plausibility ofthose claims is to be assessed generously, in light of the special solicitude normally afforded pro se litigants).*fn6 It should be emphasized that FED. R. CIV. P. 8's plausibility standard, explained in Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated, "Specific facts are not necessary" to successfully state a claim under Fed. R. Civ. P. 8(a)(2). Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) [citation omitted; emphasis added]. That statement was merely an abbreviation of the often-repeated point of law--first offered in Conley and repeated in Twombly--that a pleading need not "set out in detail the facts upon which [the claim is based]" in order to successfully state a claim. Twombly, 127 S.Ct. 1965, n.3 (citing Conley, 355 U.S. at 47) [emphasis added]. That statement did not mean that all pleadings may achieve the requirement of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to relief above the speculative level to a plausible level.*fn7

Finally, in reviewing a complaint for dismissal under FED. R. CIV. P. 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor. This standard is applied with even greater force where the plaintiff alleges civil rights violations and/or where the complaint is submitted pro se. However, while the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed),*fn8 it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in FED. R. CIV. P. 8, 10 and 12.*fn9

Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in FED. R. CIV. P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.*fn10 Stated more plainly, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended." Jackson, 549 F. Supp.2d at 214, n.28 [citations omitted].


Generally, Plaintiff's Complaint alleges that certain events occurred at Clinton Correctional Facility ("Clinton C.F.") in January 2004 which precipitated a pattern of retaliation against him later in 2004.

In particular, Plaintiff alleges that, on January 15, 2004, Defendant LaBonte told Inmate Peter Grieco, Plaintiff's co-worker, that (1) he (LaBonte) believed Plaintiff was a homosexual because Plaintiff associated with inmate Mark Brooks, and (2) Plaintiff and Brooks would not be allowed to work in the same program at the same time. AC ¶ 8. Plaintiff alleges that, after Inmate Grieco told Plaintiff about his conversation with Defendant LaBonte, Plaintiff confronted Defendant LaBonte about the conversation, whereupon LaBonte repeated the statements to Plaintiff, adding that "as long as plaintiff is assigned at the Church, inmate Brooks will 'NEVER' be assigned, for fear of 'homosexual acts' being committed between plaintiff and inmate Brooks." AC ¶¶ 9, 11. Plaintiff alleges that, in response, he told Defendant LaBonte that he is not homosexual and is only friends with Brooks. AC ¶ 12.

Furthermore, Plaintiff alleges that, on January 28, 2004, he appeared before the Clinton C.F. Assessment and Program Preparation Unit ("A.P.P.U.")*fn11 Program Committee, which was comprised of Defendants Facteau, Garbera, and Ward, as well as "Teacher Ms. Barber" and an "unknown lady." AC ¶ 15. Plaintiff alleges that Defendant Garbera told Plaintiff that they all knew about Plaintiff and Inmate Brooks "being an item," and that Plaintiff could not change his work program to be closer to Brooks. AC ¶ 16. Plaintiff alleges that, when he stated that he had never been homosexual, Defendants Facteau, Ward and Garbera stated that Plaintiff was "guilty by association" with Brooks, a known homosexual, and that, as a result, he should get used to being treated as a homosexual. AC ¶¶ 21, 22.

Moreover, Plaintiff alleges that, on January 29, 2004, he filed a "grievance" with Defendant Artus against Defendants LaBonte, Facteau, Ward, and Garbera concerning LaBonte's statements on January 15, 2004 and the statements and actions of Facteau, Ward, and Garbera on January 28, 2004. AC ¶ 23.*fn12 Plaintiff alleges that, after these incidents, he was subjected to several retaliatory acts (including the loss of his work assignment at the facility church and the receipt of four false misbehavior reports) before he was transferred to Upstate Correctional Facility ("Upstate C.F.") in March of 2005.

Based on these factual allegations, Plaintiff asserts six claims against Defendants. First, Plaintiff alleges that Defendant Lacy violated his right to due process under the Fourteenth Amendment, during Plaintiff's disciplinary hearings, by (1) refusing to let Plaintiff call Inmate Brooks as a witness on one occasion, (2) beginning a hearing five hours and nineteen minutes late, and then improperly adjourning the hearing, on one occasion, and (3) laboring under a conflict of interest on another occasion (by reviewing a grievance written by Plaintiff against LaBonte while also reviewing a misbehavior report written by LaBonte against Plaintiff).

Second, Plaintiff alleges that Defendants violated his right to access the courts under the First Amendment by improperly denying his requests to have Inmate Brooks (as opposed to some other inmate) serve as his legal assistant.

Third, Plaintiff alleges that Defendants violated his right to freedom of association under the First Amendment by denying him the right to associate with Inmate Brooks.

Fourth, Plaintiff alleges that Defendants LaBonte, Garbera, Ward, Facteau, Lareau, Uhler, and Lacy violated 42 U.S.C. §§ 1983 and 1985 by conspiring to deprive him of his constitutional rights. Specifically, Plaintiff alleges that Defendant LaBonte conspired with Correctional Officer Stevens to ensure that Plaintiff was permitted to attend his work program only at times approved by Defendant LaBonte. Plaintiff alleges that Defendant Garbera conspired with Correctional Officers Mayo and McLain "to deprive Plaintiff of his right to legal assistance from an inmate." Plaintiff alleges that Defendants Garbera, Ward, Facteau, Lareau, and Uhler conspired to violate Plaintiff's right of freedom of association. Plaintiff alleges that Defendant Lacy conspired with others, including Defendant LaBonte, to deprive him of due process in the course of a disciplinary hearing, and in responding to a grievance filed by Plaintiff.

Fifth, Plaintiff alleges that Defendants LaBonte, Berg, Santor, Lareau and Garbrera violated his right to be free from retaliation under the First Amendment by subjecting him to various forms of adverse action in response to grievances that he filed. More specifically, Plaintiff alleges that Defendants subjected him to the following forms of adverse action: (1) Defendant LaBonte held Plaintiff back from his work program on twenty-three of thirty-six work days beginning in February 2004; (2) Defendant Garbera caused Plaintiff to be wrongfully placed in keeplock confinement in February 2004, and then to be wrongfully transferred to Upstate C.F. in March 2005; (3) Defendant Lareau issued, or caused to be issued, two false misbehavior reports against Plaintiff in April 2004; and (4) Defendants Berg and Santor denied his requests for legal assistance from Inmate Brooks in February and March 2004.

Sixth, and finally, Plaintiff alleges that Defendants violated his right to equal protection under the Fourteenth Amendment by treating him differently than other inmates on the basis of his perceived homosexuality.


A. Personal Involvement of Defendant Artus

The personal involvement of a defendant is a prerequisite for the assessment of damages in an action arising under 42 U.S.C. § 1983, McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), and the doctrine of respondeat superior is inapplicable in such an action. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973). In Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986), the Second Circuit detailed the various ways in which a supervisory defendant can be personally involved in a constitutional deprivation. A supervisory official is deemed to have been personally involved in four circumstances: (1) if that official directly participated in the infraction; (2) if, after learning of a violation through a report or appeal, he or she failed to remedy the wrong; (3) if he or she created a policy or custom under which unconstitutional practices occurred or allowed such a policy or custom to continue; or (4) if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event. Id. Prison supervisors cannot be deemed personally involved based simply on a response to a complaint. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997). Moreover,

[i]t is now well-settled that the failure of a supervisory official to investigate a letter of protest written by an inmate is not sufficient to show personal involvement. Smart v. Goord, 441 F. Supp. 2d 631, 642-643 (S.D.N.Y. 2006). The same is true if the only involvement of the supervisory official is to refer the inmate's complaint to the appropriate staff for investigation. Ortiz-Rodriguez v. N.Y. State Dep't of Corr. Servs., 491 F. Supp. 2d 342, 347 (W.D.N.Y. 2007).

Harnett v. Barr,538 F. Supp. 2d 511, 524-25 (N.D.N.Y. 2008) (Hurd, J.).

"Some courts have held that if the supervisory official acts personally in denying a grievance at various stages of the grievance process, he may be sufficiently involved in failing to remedy the situation." Harnett,538 F. Supp. 2d at 524-25 (citing Atkinson v. Selsky, 03 Civ. 7759, 2004 WL 2319186, *1, 2004 U.S. Dist. LEXIS 20560, *2-4 [S.D.N.Y. Oct. 15, 2004] [denial of grievance sufficient for personal involvement]). To determine personal responsibility in such a case, the grievance must allege an "ongoing" constitutional violation that the supervisory official who reviews the grievance can remedy directly. Hall v. Leclaire, 06 Civ. 946, 2007 WL 1470532, 2007 U.S. Dist. LEXIS 36951 (S.D.N.Y. May 22, 2007), accepted in part and rejected in part on other grounds, 2007 WL 2815624, 2007 U.S. Dist. LEXIS 72715 (S.D.N.Y. Sept. 24, 2007); see also Young v. Kihl, 720 F. Supp. 22, 23 (W.D.N.Y. 1989) (the wrong must have been capable of mitigation at the time the supervisory official was apprised thereof). "If the official is confronted with a violation that has already occurred and is not ongoing, then the official will not be found personally responsible for failing to 'remedy' a violation." Harnett,538 F. Supp. 2d at 524-25.

"Further, a Section 1983 plaintiff must 'allege a tangible connection between the acts of the defendant and the injuries suffered.'" Austin v. Pappas,No. 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (citing Bass v. Jackson, 790 F.2d 260, 263 [2d Cir. 1986] [other citation omitted]). Moreover, where the personal involvement of a defendant in a Section 1983 violation is premised upon a claim of conspiracy, "[i]t is incumbent on a plaintiff to state more than conclusory allegations to avoid dismissal of a claim predicated on a conspiracy to deprive him of his constitutional rights." Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990).

In his Amended Complaint, Plaintiff alleges that he sent several letters and grievances to Defendant Artus, who then referred all but one of them to appropriate correctional staff for investigation. Defendant Artus's actions in referring the letters to staff for investigation is not sufficient to establish personal involvement.*fn13 The only grievance that Defendant Artus allegedly reviewed directly was the appeal of Plaintiff's January 29, 2004, grievance complaining of (1) Defendant LaBonte's "actions and statements on Jan. 15, 2004," and (2) the statements of Defendants Facteau, Ward, and Garbera on January 28, 2004. AC ΒΆ 23. However, the misconduct alleged in that grievance had occurred before January 29, 2004, and was not ongoing when the grievance was later reviewed on appeal by ...

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