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Cesar Mateo v. M. Gundrum

August 30, 2011


The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge


This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Cesar Mateo alleges that Defendants retaliated against him for filing grievances and lawsuits. (Dkt. No. 21.) Currently pending before the Court is Defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 27.) For the reasons that follow, I recommend that Defendants' motion be granted in part and denied in part.


The following facts are taken from Plaintiff's Amended Complaint (Dkt. No. 21) ("the complaint") and from documents attached to the complaint:

Plaintiff, an inmate of the New York State Department of Corrections and Community Supervision ("DOCCS"), filed twenty-nine grievances between May 5, 2003, and November 16, 2009. (Dkt. No. 21 at 27.*fn1 ) Plaintiff alleges that there is a wide-reaching conspiracy against him, motivated "racially and personally" because Plaintiff has filed so many grievances against DOCCS staff members. Id. at 9.

In June 2010, Plaintiff arrived at Coxsackie Correctional Facility. Id. at 21.

On June 19, 2010, Plaintiff wrote to Defendant Daniel Martuscello, Superintendent of Coxsackie Correctional Facility. Id. at 29. Plaintiff alleged that an officer would not let him keep an appointment at the facility's law library. Id. He alleged that this was "causing [him] to miss a Court Order[ed] date line." Id. at 30. He alleged that the officer was acting as part of a wide-ranging conspiracy against him that followed him from facility to facility. Id. He also stated that his repeated requests for dental care were being denied. Id. He requested access to the law library, proper dental care, and an end to the conspiracy. Id. at 30-31.

On August 7, 2010, Plaintiff filed a grievance. Id. at 32. He complained that he had discovered a dead insect in his medically prescribed meal. Id. He stated that the officers in the cafeteria refused to provide him with another meal. Id. He noted that the "incident occurred a day after I was interviewed by a correction sergeant in reference to my previously filed grievance regarding not receiving my prescribed diet . . ." Id. at 33.

Plaintiff wrote a letter to the Hon. Stan L. Pritzker, Acting Justice of the Washington County Supreme Court. Id. at 14. Plaintiff complained that he was being harassed and retaliated against by prison staff. Id. In the letter, Plaintiff stated that the day after he filed his grievance regarding his meal, an officer came to his cell and told him to pack up his property to move out of that unit and into Division C-3. Id. The officer told Plaintiff that he would be beaten and said "hope you'll enjoy going to the hospital." Id. Plaintiff asked Judge Pritzker to protect his rights. Id.

In a grievance filed with the Inmate Grievance Resolution Committee, Plaintiff alleged that on August 9, 2010, before he moved to Division C-3, an officer came to his cell and told him to go see the Sergeant. Id. at 16. The Sergeant asked if Plaintiff had written grievances. Id. When Plaintiff said that he had, the Sergeant threatened to frame him, write a false misbehavior report, and restrict his privileges. Id.

Letters to Plaintiff from DOCCS Deputy Commissioner Lucien J. Leclaire dated August 12, 2010, and August 17, 2010, indicate that Plaintiff had filed grievances regarding the visiting room policy and meals at Coxsackie. Id. at 24-25.

Plaintiff alleges that Defendant Correction Officer M. Gundrum, the officer in charge of Division C-3, "is known for retaliating [against and] harassing inmates on behalf of his fellow[] officers." Id. at 7. Plaintiff alleges that Defendant Gundrum stopped by Plaintiff's cell on September 8, 2010, and said "I'm gonna have fun with you." Id. Plaintiff alleges that Defendant Gundrum issued a false misbehavior report against him later that day. Id. Plaintiff has attached a copy of the misbehavior report to his amended complaint. Id. at 18. In the report, Defendant Gundrum stated that he: was supervising C-3 Division inmates during the morning chow run.

At the completion of the meal period I instructed all C-3 inmates to exit the mess hall and line up in the Assembly in cell order. As the division was lining up I observed [Plaintiff] to be having a loud conversation with [another inmate], who was standing to the side of [Plaintiff]. Both inmates were ordered to cease creating a disturbance and [the other inmate] was ordered to line up in his proper place. No further incident.

Id. Defendant Gundrum charged Plaintiff with violating Rules 104.13 (creating a disturbance) and 109.12 (directions relating to movement). Id. In the complaint, Plaintiff disputes Defendant Gundrum's report that he was having a "loud conversation." Plaintiff alleges that he spoke "moderately and politely" to the other inmate in order to recover "his State provided Workbook." Id. at 20.

Defendant Martin conducted the disciplinary hearing on the misbehavior report on September 10, 2010. Id. at 8. Plaintiff alleges that Defendant Martin was belligerent and verbally harassed Plaintiff and threatened him during the hearing. Id. Specifically, Plaintiff alleges that Defendant Martin said:

This is a small facility . . . We are all one here . .. You wrote grievances against officers and pissed them off . . . I know you from interviewing you for grievances . . . We are gonna make your stay at this facility uncomfortable . . . You have it coming . . . You have more tickets on their way . . . We are gonna fuck with you.

Id. Plaintiff alleges that Defendant Martin did not allow him "to properly state[] [his] defense and objection to the inmate misbehavior report and charges." Id. Defendant Martin found Plaintiff guilty of the charges. Id. at 8, 19. Defendant Martin sentenced Plaintiff to thirteen days' loss of recreation and commissary privileges and one work task. Id. at 20.

Plaintiff appealed Defendant Martin's disposition to Defendant Martuscello. Id. Plaintiff complained that he was "not afforded the opportunity to properly and fully state[] his objections and defense" at the disciplinary hearing. Id. He complained that Defendant Martin had acted with "belligerence [and] malice" and threatened to issue fabricated misbehavior reports and beat him up. Id. Plaintiff stated that he believed that Defendant Gundrum wrote the misbehavior report "in retaliation [] for his grievances and lawsuits against correction staff[] officers." Id. at 22. He noted that the misbehavior report "does not contain allegations that [Plaintiff] . . . failed to follow the officer's direction." Id.

Plaintiff alleges that on September 10, 2010, he heard another inmate being beaten. Id. at 38. He wrote to Brian Fischer, the Commissioner of DOCCS, about what he had heard. Id. at 40. Lucien Leclaire responded that "[i]t is the Department's policy not to respond to an inmate regarding another inmate." Id.

On September 15, 2010, Plaintiff filed his original complaint in this action. (Dkt. No. 1.) Plaintiff alleges that Defendant Martuscello denied him dental care in retaliation for his grievances. (Dkt. No. 21 at 9.) Specifically, Plaintiff alleges that on September 16, 2010, he went to see dental staff. Id. at 10. The "dental staff said to me that they were going to fix the tooth to cause me pain." Id. Dental Technician John Doe then "improperly, intentionally and maliciously" made direct contact with the nerve of Plaintiff's tooth while filling a cavity. Id.

On October 16, 2010, Plaintiff wrote to Judge Sharpe. Id. at 36. He complained that when he saw the prison dentist, the dentist berated him and refused to give him dental care. Id.

On November 10, 2010, Plaintiff wrote to Judge Sharpe. Id. at 35. He complained that the filling in his tooth was still causing him pain. Id.

On January 10, 2011, Plaintiff wrote to the Chairman of the State Commission of Correction. Id. at 34. He stated that Defendant Gundrum was threatening and harassing him by calling him "ballwasher." Id.

Plaintiff filed the amended complaint on February 3, 2011. (Dkt. No. 21.)

Plaintiff alleges that he has developed high blood pressure as a result of the harassment by DOCCS officials. Id. at 9. Plaintiff fears for his "life, health, [and] safety." Id. at 3. Plaintiff requests "an investigation by an independent agency" if he is "found dead or un[]responsive . . . in the custody of Defendants." Id. Plaintiff requests "this Court's special attention and intervention in this matter, as well as its monitoring, permanently." Id. at 1. Plaintiff requests a root canal to remedy the damage to his tooth. Id. at 13.

Plaintiff alleges that he did not exhaust his administrative remedies because his "speech has been chilled" and "inhibited due to threats of physical harm and . . . fabricated misbehavior reports." Id. at 2, 4.

Defendants now move to dismiss the complaint. (Dkt. No. 27.) Plaintiff has opposed the motion. (Dkt. No. 28.) Defendants have filed a reply. (Dkt. No. 29.)


A defendant may move to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted. In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937');">129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (emphasis added). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense. . . . [W]here the ...

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