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Garcia v. Watts

August 27, 2009

ALVARO R. GARCIA, PLAINTIFF,
v.
HARRELL WATTS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE JED S. RAKOFF, United States District Judge

I. Introduction

Plaintiff, Alvaro Garcia, a former federal inmate at the Metropolitan Correctional Center ("MCC") in New York, New York commenced this pro se action against twenty-four named defendants and four John and Jane Does for alleged violations of his constitutional rights pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 399 (1971) and 42 U.S.C. § 1983. All named defendants have moved to dismiss plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6). On April 20, 2009, I issued a report and recommendation recommending that Michael Weil, Esq. and the Federal Defenders' motions be granted in all respects (Docket Item 46). This report and recommendation addresses the remaining defendants' motions to dismiss. For the reasons set forth below, I respectfully recommend that the remaining defendants' motion to dismiss be granted in part and denied in part.

II. Facts*fn1

On November 14, 2006, plaintiff was convicted and sentenced to a term of thirty months imprisonment.*fn2 On May 24, 2007, plaintiff was transferred from the Allenwood Federal Correctional Institution to the MCC in New York (Complaint ("Compl."), dated Sept. 5, 2008, at 2 (Docket Item 2)). Plaintiff alleges that, beginning in approximately August 2007, he was sexually assaulted and repeatedly harassed by defendant Officer Joel Rodriguez, in violation of his Eighth Amendment constitutional rights (Compl. at 2). Specifically, plaintiff alleges that during a visit to the office of Counselor Espinet, Rodriguez approached plaintiff and said "Pat Down" while grabbing plain-tiff's buttocks; plaintiff was the only inmate subject to a pat down at this time (Compl. at ¶ 1). In September 2007, Rodriguez again grabbed plaintiff and "rubbed his penis against the plaintiff's buttocks . . . [when] the plaintiff jumped away in surprise, [] the defendant grabbed the plaintiff's hips, and forcibly pulled the plaintiff toward his penis and rubbed against the plaintiff's buttocks" (Compl. at ¶ 2). After plaintiff reported the incident to Officer Lugo, Rodriguez again approached plaintiff and asked if plaintiff "was having a bad morning?" while stroking plaintiff's right hand (Compl. at ¶ 2).

Over the next year plaintiff alleges that Rodriguez engaged in an ongoing and continuous pattern of harassment. On October 8, 2007, Rodriguez stood and stared at plaintiff in a menacing manner (Compl. at ¶ 4). The following day Rodriguez approached plaintiff while he was sitting with another inmate and stated "you guys like to write me up, so I'll give you more cop-outs to do that" and proceeded to search plaintiff's cell. After completing his search of plaintiff's cell, Rodriguez handed plaintiff a blank "cop-out" form (Compl. at ¶ 6; see also Request for Administrative Remedy, dated October 14, 2007, attached as Ex. 9 to the Compl. ("Oct. 14, 2007 Grievance")).*fn3 On October 22, 2007, Rodriguez woke plaintiff at approximately 12:30 a.m. by loudly knocking on plaintiff's cell and "illuminated his face with his flashlight in the cell door window and stared at plaintiff" (Compl. at ¶ 15). Rodriguez repeated this behavior on the night of October 29 while repeatedly asking plaintiff if he was "still writing me up, you writing me up again?" (Compl. at ¶ 22).

In response to these incidents plaintiff filed an administrative grievance and made several efforts to obtain legal representation. On November 14, defendant Officer Hicks issued an incident report charging plaintiff with unauthorized conduct during computer class because plaintiff had used the computer to write a letter to defendant Michael Weil, Esq., a staff attorney with the Federal Defenders, describing the sexual assaults and ensuing harassment by Rodriguez and soliciting representation (Compl. ¶ 26; see also Administrative Appeal Response by D. Scott Dodrill ("Jan. 24, 2008 Admin. Resp."), dated January 24, 2008, attached as Ex. 30 to the Compl.). Defendant Daniel Ortiz delivered this incident report*fn4 to plaintiff and they briefly discussed plaintiff's allegations against Rodriguez. Ortiz offered to take plaintiff to the Special Housing Unit ("SHU") and submit a request to transfer plaintiff to a different facility if plaintiff felt that he was in danger; plaintiff declined these "offers for protection" (Compl. ¶ 27; Plaintiff's notes at 11, attached as Ex. 1 to the Compl.). Defendant Hector Suarez conducted the hearing at which plaintiff was found guilty of engaging in the prohibited act of "Using any Equipment or Machinery Contrary to Instructions or Posted Safety Standards (Code 319)"*fn5 (Compl. ¶¶ 27-29). Plaintiff filed an appeal from this incident and a request for an administrative remedy with defendant James N. Cross, the warden of the MCC (Compl. ¶ 36). Cross appears to have denied both requests on December 4, 2007 (Response to Request for Administrative Remedy ("Admin. Resp."), dated December 4, 2007, attached as Ex. 19 to the Compl. ("Dec. 4 2007 Admin Resp.")). On November 19, 2007 and again on November 26, 2007, defendant Gonzalez allegedly "threatened retaliation in the form of incident reports and placement in the Special Housing Unit for [plaintiff's] exercis[e] [of] his 1st Amendment right to redress grievances" (Compl. ¶¶ 34, 40).

During this same time period, Rodriguez's harassment allegedly continued unabated. On November 18, 2007, Rodriguez came to plaintiff's cell and punched the cell door window (Compl. at ¶ 33). Rodriguez allegedly "singled out" plaintiff for a cell search on December 5, 2007 and confiscated some of plaintiff's private property without cause (Compl. at ¶ 41). On December 13, 2007, Rodriguez again allegedly knocked on plaintiff's cell window in the middle of the night and spent the entire night staring at plaintiff (Compl. at ¶¶ 42-43). Following this incident, plaintiff mailed a letter on December 13 to a Mr. Gregory of Human Rights Watch Information, detailing the alleged sexual assaults and harassment. Plaintiff believes that Rodriguez, who was on duty the evening of December 13-14, intercepted this letter (Compl. at ¶ 49).*fn6

Plaintiff alleges that Rodriguez destroyed his "Gate Pass" resulting in plaintiff's being restricted to his unit during the months of January through March of 2008 (Compl. ¶ 56). After plaintiff's gate pass was restored, Rodriguez saw plaintiff working and allegedly stated "you got your gate pass again? I'll have to do something about [that]" (Compl. ¶ 74). Plaintiff further alleges that, on several separate occasions in March 2008, Rodriguez approached plaintiff, from behind, and whispered that Rodriguez was plaintiff's in his ear "'daddy'" (Compl. ¶¶ 66, 72).

On April 7, defendant Galleta issued an incident report accusing plaintiff of insolence and placed plaintiff in the SHU for four days (Compl. ¶ 77). Plaintiff alleges that he was placed in a cell covered with feces, blood and other bodily fluids for two of the four days and was not provided with any cleaning materials (Compl. ¶ 77). Rodriguez visited plaintiff in the SHU, asked plaintiff if he would like a shower and then walked away laughing (Compl. ¶ 77).

On May 18, Officer Alvarado approached plaintiff and asked him if he was "warming the hot-dogs" (Compl. ¶ 83). When plaintiff asked Alvarado why he would say such a thing, Alvarado gestured towards Rodriguez, who allegedly winked and smiled at plaintiff (Comp. ¶ 83). On June 8, Rodriguez allegedly walked up behind plaintiff and whispered "[a]re you warming the hot dogs?" (Compl. ¶ 86). Finally, after he was reassigned on June 10, Rodriguez allegedly asked inmate Gloss to tell plaintiff "that [Rodriguez] loved him and sent hugs and kisses" (Compl. ¶ 87).

Plaintiff alleges that defendants, Jay Arrias, Adler Canales, D. Scott Dodrill, Rina Desai, Thomas Gomez, Fernando Gonzalez, S. Gregg, Wade Jones, Lamine N'Diaye, Ms. Pearson, and Rufus Williams, all were informed of Gonzalez's behavior and took no action (Compl. ¶¶ 11, 17, 25, 32, 34, 71, 90).

III. Analysis

Plaintiff's appears to bring this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that the defendants violated his First, Sixth, Eighth and Fourteenth Amendment rights. The defendants move to dismiss all of plaintiff's claims on the grounds that: (1) the Court lacks subject matter jurisdiction over constitutional claims brought against United States Bureau of Prisons employees acting in their official capacities, (2) Rodriguez's sexual assaults and harassment do not rise to the level of cruel and unusual punishment and, therefore, plaintiff fails to state an Eighth Amendment claim, (3) plaintiff fails to state a claim for denial of access to the courts, (4) plaintiff fails to state a First Amendment retaliation claim with respect to the alleged unauthorized cell search and plaintiff's placement in the SHU, (5) defendants Sadowski, Hicks, Ortiz, Suarez, Cross, Desai, Gregg, Dodrill, and Watts lack the personal involvement necessary to sustain a Bivens claim, (6) this Court lacks subject matter jurisdiction over plaintiff's claims under the Federal Tort Claims Act ("FTCA") and (7) under the Prison Litigation Reform Act ("PLRA") plaintiff may not recover compensatory damages for his emotional injuries (Defendants' Motion to Dismiss ("Def. Mot."), dated February 4, 2009, at 5-19; Docket Item 48).

A. Standard Applicable to a Motion to Dismiss Pursuant to Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

The defendants first move to dismiss plaintiff's Bivens claims, against the defendants in their official capacities, on the ground that the Court lacks subject matter jurisdiction over these claims. The standards applicable to a motion to dismiss for lack of subject matter jurisdiction have been comprehensively set forth by the Honorable Denise L. Cote, United States District Judge, in Cromer Finance Ltd. v. Berger, 137 F. Supp.2d 452, 467 (S.D.N.Y. 2001):

In assessing a motion to dismiss for lack of subject matter jurisdiction, a court must "accept as true all material factual allegations in the complaint," Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)), but refrain from "drawing from the pleadings inferences favorable to the party asserting [jurisdiction]." Id. (citing Norton v. Larney, 266 U.S. 511, 515, 45 S.Ct. 145, 69 L.Ed. 413 (1925)). Courts evaluating Rule 12(b)(1) motions "may resolve the disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Zappia Middle East Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). Where jurisdiction is "so intertwined with the merits that its resolution depends on the resolution of the merits," the court should use the standard "applicable to a motion for summary judgment" and dismiss only where "no triable issues of fact" exist. London v. Polishook, 189 F.3d 196, 198-99 (2d Cir. 1999) (citation omitted); see also Europe and Overseas Commodity Traders, S.A. v. Banque Paribas London, 147 F.3d 118, 121 n.1 (2d Cir. 1998). see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997); Espada v. N.Y. Bd. of Elections, 07 Civ. 7622 (SAS), 2007 WL 2588477 at *2 (S.D.N.Y. Sept. 4, 2007). The party asserting that the court has subject matter jurisdiction bears the burden of proving the court's jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990); Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 93 (2d Cir. 2004); Bd. of Educ. v. N.Y. State Teachers Ret. Sys., 60 F.3d 106, 109 (2d Cir. 1995).

1. Sovereign Immunity

In any suit in which the United States is a defendant "[t]he waiver of sovereign immunity is a prerequisite to subject-matter jurisdiction." Presidential Gardens Assocs. v. United States, 175 F.3d 132, 139 (2d Cir. 1999), citing United States v. Mitchell, 463 U.S. 203, 212 (1983), and quoting Blatch-ford v. Native Vill. of Noatak, 501 U.S. 775, 786-87 n.4 (1991).

It is well settled that the United States enjoys sovereign immunity from suits except to the extent that it has waived such immunity. United States v. Navajo Nation, 537 U.S. 488, 502 (2003); United States v. Mitchell, supra, 463 U.S. at 212; United States v. Lee, 106 U.S. 196, 206 (1882) (explaining derivation of principle of sovereign immunity and its applicability to United States). "Because an action against a federal agency or federal officials in their official capacities is essentially a suit against the United States, such suits are also barred under the doctrine of sovereign immunity, unless such immunity is waived." Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994), citing Fed. Deposit Ins. Co. v. Meyer, 510 U.S. 471, 484 (1994); accord Langella v. United States, 6 F. App'x 116, 117 (2d Cir. 2001); Nwanze v. Morris, 6 F. App'x 98, 100 (2d Cir. 2001); Fuentes v. Parks, 03 Civ. 2660 (RMB), 2005 WL 911442 at *4 (S.D.N.Y. Apr. 18, 2005); Thomas v. Ashcroft, 02 Civ. 5746 (CBM), 2004 WL 1444735 at *4 (S.D.N.Y. June 25, 2004) (Bivens claims "must be brought against the federal officers in their individual capacities"), rev'd on other grounds, 470 F.3d 491 (2d Cir. 2006). The United States has not waived the defense of sovereign immunity with respect to constitutional claims brought against the BOP or its employees in their official capacities. Sereika v. Patel, 411 F. Supp.2d 397, 402 (S.D.N.Y. 2006); Williams v. Metropolitan Detention Center, 418 F. Supp.2d 96, 100 (E.D.N.Y. 2005); Owusu v. Federal Bureau of Prisons, 02 Civ. 915 (NRB), 2003 WL 68031 at *1 (S.D.N.Y. Jan. 7, 2003). Thus, to the extent that plaintiff's claims are brought against the individual defendants in their official capacities, such claims are not cognizable under Bivens and they should, therefore, be dismissed. This does not, however, dispose of the case because the caption indicates that plaintiff is suing the defendants in their official and individual capacities

B. Standard Applicable to Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6) for Failure to State a Claim

The standards applicable to a motion to dismiss pursuant to Rule 12(b)(6) are well settled and require only brief review.

When deciding a motion to dismiss under Rule 12 (b)(6), [the court] must accept as true all well-pleaded factual allegations of the complaint and draw all reasonable inferences in favor of the pleader. See City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986); Miree v. DeKalb County, 433 U.S. 25, 27 n.2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977)(referring to "well-pleaded allegations"); Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). "'[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statement or documents incorporated in it by reference.'" Int'l Audiotext Network, Inc. v. Am. Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)(quoting Cortec Indus., Inc. v. Sum Holdings L,P., 949 F.2d 42, 47 (2d Cir. 1991)). The Court also may consider "matters of which judicial notice may be taken." Leonard T. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (citing Allen v. WestPoint-Pepper- ill, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). In order to avoid dismissal, a plaintiff must do more than plead mere [c]onclusory allegations or legal conclusions masquerading as factual conclusions." Gebhardt v. Allspect, Inc., 96 F. Supp.2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm. Moore, Moore's Federal Practice ¶ 12.34 [a][b](3d ed. 1997)).

Hoffenberg v. Bodell, 01 Civ. 9729 (LAP), 2002 WL 31163871 at *3 (S.D.N.Y. Sept. 30 2002); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007); Johnson & Johnson v. Guidant Corp., 06 Civ. 7685 (GEL), 2007 WL 2456625 at *4 (S.D.N.Y. Aug. 29, 2007).

The Supreme Court has recently clarified the proper mode of inquiry in evaluating a motion to dismiss pursuant to Rule 12(b)(6), which uses as its starting point the principle that "[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a).

First, in Bell Atl[antic] Corp. v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson 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." 550 U.S. at 562. Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Id. at 570.

Talley v. Brentwood Union Free Sch. Dist., Civ. 08-790, 2009 WL 1797627 at *4 (E.D.N.Y. June 24, 2009).

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citations, internal quotations and alterations omitted).

However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1939 (2009). As a result, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." 129 S.Ct. at 1949.

In evaluating a motion under Rule 12(b)(6), a court must determine whether a plaintiff has stated any facially plausible claims. A plaintiff's allegations state a facially plausible claim when their factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." 129 S.Ct. at 1950. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." 129 S.Ct. at 1949. Accordingly, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'show[n]' -- 'that the pleader is entitled to relief.'" 129 S.Ct. at 1950, quoting Fed. Rule Civ. Proc. 8(a)(2).

Nevertheless, where, as here, a plaintiff proceeds pro se, the complaint must be liberally construed to raise the strongest claims the allegations suggest. Haines v. Kernner, 404 U.S. 519, 520 (1972); In re Sims, 534 F.3d 117, 133 (2d Cir. 2008); Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). This rule applies "with particular stringency to [pro se] complaints of civil rights violations." Phillip v. Univ. of Rochester, 316 F.3d 291, 293-94 (2d Cir. 2003).

1. Eighth Amendment Claim

The defendants argue that plaintiff's allegations of two instances of sexual assault even when viewed in conjunction with the allegations of several months of harassment do not rise to the level of an Eighth Amendment violation (Def. Mot. at 10).

The Eighth Amendment sets constitutional boundaries on the conditions of imprisonment. There are two requirements for stating such a claim: (1) the alleged punishment must be "objectively, sufficiently serious" such that it would be considered cruel and unusual punishment under contemporary standards and (2) the defendant must have acted with a "sufficiently culpable state of mind." Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997), citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981), and Farmer v. Brennan, 511 U.S. 825, 834 (1994); Branham v. Meachum, 77 F.3d 626, 630 (2d Cir. 1996). "Sexual abuse of a prisoner by a corrections officer may, in some circumstances, violate the prisoner's Eighth Amendment right to be free from cruel and unusual punishment." Sharpe v. Taylor, 9:05-CV-1003 (GTS/GHL), 2009 WL 1743987 at *10 (N.D.N.Y. Jun. 18, 2009). For example, "severe or repetitive sexual abuse of an inmate by a prison officer can be 'objectively, sufficiently serious' enough to constitute an Eighth Amendment violation" because such repetitive sexual abuse can cause severe physical and psychological harm. Boddie v. Schnieder, supra, 105 F.3d at 861. Moreover, "a prison official who sexually abuses a prisoner can be found to have a sufficiently culpable state of mind to violate the prisoner's constitutional rights." Boddie v. Schnieder, supra, 105 F.3d at 861. Nevertheless, in Boddie v. Schnieder, supra, 105 F.3d at 861, the Second Circuit held that a small number of incidents in which [a plaintiff is] verbally harassed, touched, and pressed against without his consent . . . are despicable and, if true, [] may potentially be the basis of state tort actions. But [these incidents of harassment and touching] do not involve a harm of federal constitutional proportions as defined by the Supreme Court.

Accordingly, courts in this Circuit have routinely dismissed claims involving isolated instances of allegations of fondling and groping, similar to those made here, as insufficient to sustain an Eighth Amendment claim. See e.g. Sharpe v. Taylor, supra, 2009 WL 1743987 at *10; Young v. Poff, 04 CV 320 (HBS), 2006 WL 1455482 at *4 (W.D.N.Y. May 22, 2006) (dismissing plain-tiff's Eighth Amendment claim that he was groped by a correctional officer during a pat frisk); Morrison v. Cortright, 397 F. Supp.2d 424, 425 (W.D.N.Y. 2005) (allegation that defendant "rubbed up against plaintiff buttocks with his private part during the strip frisk" insufficient to state an Eighth Amendment claim); Davis v. Castleberry, 364 F. Supp.2d 319, 321 (W.D.N.Y. 2005) (correctional officer groped inmate's penis during pat frisk); Montero v. Crusie, 153 F. Supp.2d 368, 375 (S.D.N.Y. 2001)(repeated gropings); Gill v. Jones, 2001 WL 1346012 at (S.D.N.Y. Nov. 1, 2001)(defendant allegedly rubbed his penis against plaintiff's bare buttocks during a pat down); Duncan v. Keane, 95 Civ. 1090 (SHS), 1995 WL 649931 at *5-*6 (S.D.N.Y. Nov. 6, 1995) (corrections officer felt plaintiff's buttocks); Friedman v. Young, 702 F. Supp. 433, 434, 436 (S.D.N.Y. 1988); cf. Rodriguez v. McClenning, 399 F. Supp.2d 228, 236-37 (S.D.N.Y. 2005).

In this case, as in Boddie, the conduct allegedly endured by plaintiff -- namely, two instances of improper sexual contact, several inappropriate comments, and an allegedly unauthorized cell search -- although abhorrent, does not rise to the level of cruel and ...


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