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Allah-Kasiem v. Jose Rivera

January 18, 2011

ALLAH-KASIEM, PLAINTIFF,
v.
JOSE RIVERA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION & ORDER

Pro se plaintiff Allah Kasiem brings this 42 U.S.C. § 1983 action for a declaratory judgment, injunctive relief, and compensatory damages against seventeen officers and employees at the Sullivan Correctional Facility ("Sullivan") and the New York State Department of Correctional Services ("DOCS").*fn1 Thirteen of those defendants have filed a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim.*fn2 For the following reasons, the defendants' motion is granted as to eleven of the thirteen defendants. The plaintiff is granted leave to amend his complaint to state a claim for deliberate indifference to a serious medical condition under the Eighth Amendment.

BACKGROUND

The following facts are drawn from the complaint of October 23, 2009, and are assumed to be true for the purposes of deciding this motion to dismiss. Kasiem principally alleges that in retaliation for Kasiem's filing of grievances -- many of which were filed against Sgt. Rivera -- various defendants falsely charged him of misconduct and interfered with his use of the grievance process. He further alleges that defendants violated his right to due process during his Tier II and Tier III disciplinary hearings. The plaintiff's most significant allegations are as follows:

A. September 30, 2008 Tier III Hearing and Sgt. Rivera's Threatening Gesture Kasiem alleges that due to racial discrimination and in retaliation for grievances that he had filed against Sgt. Rivera, on or about August 23, 2008, Sgt. Rivera and CO Villegas "framed" or falsely accused him of attempting to smuggle gang-related material to an inmate in the Special Housing Unit ("SHU"). The discrimination charge against Sgt. Rivera rests on Kasiem's allegation that Sgt. Rivera wanted to replace him as chief administrative law clerk at the Sullivan Law Library with an Hispanic inmate.

On or about September 30, 2008, Capt. Gilmore conducted a Tier III hearing and refused to permit Kasiem to call a witness because Capt. Gilmore was conspiring with Sgt. Rivera. Capt. Gilmore found Kasiem guilty and sentenced him to sixty days in keeplock confinement. This decision was affirmed on appeal.

In October 2008, plaintiff filed a grievance against Sgt. Rivera and CO Villegas with DOCS Commissioner Brian Fischer ("Comm. Fischer"). This grievance was referred to Superintendent James Walsh ("Supt. Walsh") who, in turn, referred it to Deputy Superintendent for Security Patrick Griffin ("DSS Griffin"). DSS Griffin assigned Lieutenant Sandra Ostrowski ("Lt. Ostrowski") to investigate the complaint. During Lt. Ostrowski's investigation, plaintiff was taken to the sergeant's office to be interviewed. While Kasiem was awaiting the start of the interview, Sgt. Rivera -- who was accompanied by Sgt. Villegas -- threatened Kasiem by standing in the corridor outside the office and drawing his finger across his throat. Lt. Ostrowksi did not observe the threat.

Lt. Ostrowski reported to DSS Griffin that there was no evidence to support Kasiem's grievance against Sgt. Rivera and CO Villegas. She did not, however, interview the plaintiff's witnesses before reaching this conclusion. DSS Griffin referred Lt. Ostrowski's findings to Supt. Walsh who passed them on to Deputy Commissioner Lucien LeClaire. Lt. Ostrowski also told DSS Griffin that she had been with the plaintiff at all times during his interview at the sergeant's office and that she did not see Sgt. Rivera gesture toward the plaintiff from the hallway. Kasiem contends that Lt. Ostrowski failed to report Sgt. Rivera's threat to DSS Griffin "solely on the basis of retaliatory reprisal."

B. January 20, 2009 Tier III Hearing On or about December 30, 2008*fn3 , Sgt. Rivera, CO Albert and CO Gordon Simpson ("CO Simpson") "frame[d] [the] plaintiff with a false report and fabricated charges of stealing a medical dictionary from the Law Library." On January 20, 2009, at a Tier III hearing, the charge was dismissed. Kasiem alleges, however, that the officer who presided over the hearing, Education Supervisor Robert Woods ("ES Woods"), confiscated three of Kasiem's law books. Plaintiff appealed ES Woods's seizure of his books to the Director of Special Housing/Inmate Disciplinary Program Norman Bezio ("DSH Bezio"). By letter dated February 25, 2009, DSH Bezio instructed Supt. Walsh to return the books to Kasiem, but this was never done.

C. March 19, 2009 Tier III Hearing On or about March 9, 2009, Kasiem filed a sexual harassment grievance with Sergeant Rene Lawrence ("Sgt. Lawrence") based on a conversation that he overheard in which other officers, including Sgt. Rivera, referred to Sgt. Lawrence using derogatory language. Sgt. Lawrence did not investigate the plaintiff's claim and retaliated against him for filing the grievance by placing the plaintiff in keeplock confinement. On March 19, Kasiem was found guilty of a violation that he does not identify, after a Tier III hearing conducted by Steward Sandra Camio ("S. Camio"). S. Camio sentenced Kasiem to 90 days in keeplock confinement. On April 13, DSH Bezio reversed the decision, but Kasiem had already spent thirty-five days in keeplock confinement.

D. June 4, 2009 Tier II Hearing and Oral Threat by Sgts. Rivera and Madison Next, on May 29, 2009, Sgt. Rivera filed a false report based on fabricated evidence, alleging that Kasiem had "evaded" medical keeplock. Plaintiff had been released from medical keeplock nine days earlier. At a Tier II hearing convened on June 4, 2009, Sgt. Rivera's charge against Kasiem was dismissed.

Around the same time, Kasiem filed a grievance against Sgt. Rivera for filing the May 29 false report. At some point thereafter, Sgt. Rivera called Kasiem to his office and "made a death threat" to try to force him to withdraw his grievance.

On June 11, Sgt. Madison made a racially derogatory and sexual remark to Kasiem and threatened to harm him unless he withdrew his grievances against Sgt. Rivera. On the same day, Kasiem responded to these threats by filing a grievance against Sgt. Madison for unlawful racial discrimination and sexual harassment.

E. June 22 and June 30, 2009 Tier II Hearings On June 12, 2009, CO Albert gave Kasiem a pass for sick call and then alerted Sgt. Madison that the plaintiff was on his way. When Kasiem reached "the crossgates," Sgt. Madison wrongly accused Kasiem of attempting to "smuggle one peppermint candy to Sick Call and refusing to obey direct orders." Sgt. Madison sent Kasiem to keeplock confinement and filed a false report against him.

Kasiem attempted to prepare for his upcoming Tier II hearing concerning the June 12 incident by asking Sgt. Lawrence to provide him with employee assistance. On or about June 16, Sgt. Lawrence denied Kasiem's request for assistance and filed false charges against him, alleging that he had disobeyed a direct order.

On June 22, plaintiff appeared before Lieutenant Gary Sipple ("Lt. Sipple") for a Tier II hearing concerning the June 12 charges filed by Sgt. Madison. Several years earlier, in October 2007, Lt. Sipple, who was then a sergeant, filed false charges against Kasiem that were subsequently dismissed at a Tier II hearing. Due to this prior incident, Lt. Sipple was biased against Kasiem and agreed to help Sgt. Madison and Sgt. Rivera by prohibiting Kasiem from introducing certain evidence at his Tier II hearing and ordering that Kasiem be removed from the hearing when he attempted to place his objections on the record. After the plaintiff was taken from the hearing, Lt. Sipple -- in concert with Sgt. Rivera -- imposed a sentence of twenty-one days in keeplock confinement. On the same day, Kasiem filed a grievance against Lt. Sipple as well as a Tier II administrative appeal with Supt. Walsh and Captain Dale Long ("Capt. Long"). On June 26, 2009, Capt. Long affirmed the Tier II hearing decision without reviewing the record.

On June 30, Kasiem appeared at a second Tier II hearing before Lt. Sipple, this one arising from Sgt. Lawrence's June 16 report. Lt. Sipple prevented the plaintiff from calling certain witnesses who would have offered testimony regarding Kasiem's vision and hearing impairments. Lt. Sipple did, however, permit R.N. Lindsay to testify that Kasiem had excessive ear wax which may have interfered with his hearing between May 21 and June 25, 2009.*fn4 At the hearing, Lt. Sipple imposed a sanction of thirty days keeplock confinement. The plaintiff appealed the Tier II decision to Supt. Walsh. DSS Griffin was ultimately assigned to review the appeal, and dismissed the appeal without reviewing the hearing record.

F. July 21, 2009 Tier III Hearing On or about June 30, 2009, CO Albert, Sgt. Rivera, CO Villegas, and CO Simpson conducted a search of Kasiem's cell and recovered legal documents belonging to another inmate and a legal assistance approval form signed by Superintendant Patty Nelson ("Supt. Nelson") that was missing an expiration date. CO Villegas and CO Simpson forged an expiration date on the form to make it appear as if Kasiem had ...


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