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Jehan Abdur-Raheem v. Donald Selsky

July 27, 2011


The opinion of the court was delivered by: David G. Larimer United States District Judge


On March 13, 2008, Plaintiff Jehan Abdur-Raheem, through court-appointed counsel, filed an amended complaint pursuant to 42 U.S.C. § 1983, alleging various constitutional violations in connection with events that occurred from 2005 to 2007, while plaintiff was confined at Elmira Correctional Facility, in the custody of the New York State Department of Correctional Services ("DOCS"). At the time of the relevant events, Defendants Selsky, Burge, Wenderlich, Whitmore, and Powers were DOCS employees.

Following the filing of the amended complaint ("Am. Compl.") see Dkt. #22 , Defendants filed a motion to dismiss pursuant to 12(b)(1) and 12(c) of the Federal Rules of Civil Procedure. See Dkt. #31. In an Order dated February 6, 2009, this Court denied the motion with respect to Defendants Burge, Whitmore, Wenderlich, and Powers, and granted the motion with respect to Defendant Selsky due to lack of personal involvement. See Dkt. #36. The remaining defendants now move to dismiss the claims against them pursuant to 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. #42.


Plaintiff alleges the following facts, which are accepted as true for the purposes of this Decision and Order.

On November 22, 2005 Plaintiff filed a grievance regarding an "insulting" and "negative" letter that was addressed to Plaintiff by a Muslim chaplain, and requested that the letter be removed from his institutional file. Am. Compl., ¶ 20, Ex. J. The superintendent responded that the letter was not part of Plaintiff's file. Id.

On December 3, 2005, Defendant Whitmore submitted a recommendation that Plaintiff be administratively segregated for security reasons ("Recommendation"). Am. Compl., ¶ 6, Ex. B. The Recommendation was based in part on alleged observations by defendant Powers. Am. Compl. ¶ 6. Following issuance of the Recommendation, Plaintiff was placed in the Special Housing Unit ("SHU") pending a hearing on whether to place him in administrative segregation. Am. Compl. ¶ 1.

According to Plaintiff's allegations and the records attached to the complaint, a copy of the Recommendation was delivered to cell location SHU-9 on December 6, 2005. Am. Compl. ¶ 6, Ex. B. Plaintiff alleges that at that time, and at all times thereafter, he was housed in SHU-37, and that he therefore did not receive a copy of the Recommendation. Am. Compl. ¶¶ 16-17.

On December 8, Plaintiff was informed by Defendant Wenderlich that he was to appear at a hearing that day, and that if Plaintiff did not attend, it would be considered a refusal. Am. Compl. ¶ 2. Plaintiff declined to attend, see Am. Compl. Exs. A, K, and Defendant Wenderlich conducted the hearing in Plaintiff's absence between December 8, 2005 and December 14, 2005. Following the hearing, Wenderlich accepted Whitmore's recommendation that Plaintiff be placed in administrative segregation. Am. Compl. ¶ 2, Ex. A & B.

On December 15, 2005, Plaintiff received copies of the Recommendation and Wenderlich's hearing determination. Am. Compl. ¶ 4, Ex. A. The hearing determination stated that Plaintiff had "become influential enough to incite other Muslim inmates to react sometimes in a negative way" and that "it is in the best interest of this facility's safety and security to approve this recommendation." Id.

Plaintiff filed a formal grievance requesting an investigation concerning the Recommendation and to be released from SHU, which was denied by the Inmate Grievance Resolution Committee ("IGRC") on January 5, 2006. Am. Compl., Ex. L. Plaintiff then appealed to Defendant Burge, who denied the appeal, noting that "grievant declined numerous invitations to attend the Ad-Seg hearing where he had every right to challenge his confinement or address his concerns," and that "Ad-Seg hearing was properly conducted and recommendation eventually approved." Id.

On January 5, 2006, Plaintiff filed an administrative appeal to Director Donald Selsky,*fn1 alleging that the Administrative Segregation Recommendation and subsequent Hearing Determination were based on false information. Am. Compl. ¶ 18, Ex. H. The Hearing Determination was affirmed on February 13, 2006. Am. Compl. ¶ 19, Ex. I.

Plaintiff then wrote to Defendant Burge, on or about March 13, 2006, requesting that Burge reverse the decision to place Plaintiff in administrative segregation. Burge responded on March 16, 2006, stating that "the decision to place you in Ad. Seg. status was based upon information received from both staff and inmates," and declined to reverse the determination. Am. Compl., Ex. K.

In total, Plaintiff was housed in SHU for over 1000 days in connection with these events.*fn2 See Dkt. #48, p. 5).


I. Motion to Dismiss

The standards applied to a motion to dismiss under Rule 12(b)(6) are well-established. In deciding a motion brought under that rule, the "court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994).

Nonetheless, "a plaintiff's obligation ... 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); accord Ashcroft v. Iqbal, ------U.S. --------, 129 S.Ct. 1937, 1949 (2009). Thus, where a plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Twombly, 550 U.S. at 570. A "plausible" entitlement to relief exists when the allegations in the complaint move the plaintiff's claims across the line separating the "conclusory" from the "factual," and the "factually neutral" from the "factually suggestive." Id. at 557, n.5.

II. Due Process Claims Against Whitmore and Powers

A. False Administrative Segregation Recommendation

The first and second causes of action allege that the actions of Defendants Whitmore and Powers, in falsely preparing an Administrative Segregation Recommendation which resulted in Plaintiff's placement in SHU, denied Plaintiff due process of law in violation of the Fourteenth Amendment. Am. Compl. ¶¶ 58, 61

It is well settled that an inmate has no constitutionally protected right against being falsely accused of conduct which may result in the deprivation of a protected liberty interest, as long as the prisoner is provided with procedural due ...

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