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Kenneth J. Phelan v. Hersh

September 13, 2011

KENNETH J. PHELAN, PLAINTIFF,
v.
HERSH, C.O., MT. MCGREGOR CORR. FACILITY; M. SCOTT, C.O., MT. MCGREGOR CORR. FACILITY; PAM RAMOND, CIVILIAN LIBRARY CLERK, MT. MCGREGOR CORR. FACILITY; GOODMAN, LIEUTENANT, MT. MCGREGOR CORR. FACILITY; FLETCHER, CIVILIAN EMPLOYEE, MT. MCGREGOR CORR. FACILITY; J. MICHEALS, SERGEANT, MT. MCGREGOR CORR. FACILITY; CAMBELL, SERGEANT, MT. MCGREGOR CORR. FACILITY; W. HAGGETT, SUPERINTENDENT, MT. MCGREGOR CORR. FACILITY; GREGORY KADIEN, SUPERINTENDENT, GOWANDA CORR. FACILITY; P.MILLSON, MENTAL HEALTH DIRECTOR, GOWANDA CORR. FACILITY; BRIAN FISCHER, COMMISSIONER OF DEPARTMENT OF CORR.; JAMES MORGAN, ASSOCIATE DIRECTOR OF THE OFFICE OF MENTAL HEALTH; R. REGAN, CORR. OFFICER, GOWANDA CORR. FACILITY; ACOSTA-ORTIZ, CORR. OFFICER, GOWANDA CORR. FACILITY; B. PAWELCZAK, CIVILIAN HEARING OFFICER, GOWANDA CORR. FACILITY; STACHEWIEZ, LIEUTENANT, GOWANDA CORR. FACILITY; THOMPSON, DEPUTY SUPERINTENDENT, COLLINS CORR. FACILITY; R. THOMAS, CORR. OFFICER, MT. MCGREGOR CORR. FACILITY, A/K/A "FAT BOY", DEFENDANTS.



The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge

REPORT-RECOMMENDATION and ORDER

Kenneth J. Phelan, a New York state prison inmate proceeding pro se and in forma pauperis, commenced this action pursuant to 42 U.S.C. § 1983, alleging, inter alia, in forty-three causes of action, that Defendants retaliated against him for filing grievances, denied him due process of the law, denied him adequate mental health treatment in deliberate indifference to his medical needs, subjected him to cruel and unusual punishment, and generally harassed and discriminated against him on account of his disability. Dkt. No. 1, Compl. Defendants now move for dismissal of the

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 55. Plaintiff opposes the Motion. Dkt. No. 60. For the reasons that follow, we recommend that Defendants' Motion be granted in part and denied in part.

I. BACKGROUND

A. Facts

The following facts are derived from the Complaint, which, in accordance with the standard of review on a motion to dismiss, must be taken as true. See infra Part II.A.

On or about March 25, 2009, Plaintiff, while housed at Mt. McGregor Correctional Facility, requested mental health treatment from "sick call," where a nurse told him he would be notified when treatment becomes available. Compl. at ¶ 6. On April 2, 2009, Plaintiff asked Defendant Hersh if he could go to the "grievance building" to file an administrative grievance complaining about the lack of mental health treatment, to which Hersh replied that he could. Id. at ¶ 7. At the grievance building, Defendant Scott "immediately started yelling at [Plaintiff] and demanded to know why [he] wanted to file [a grievance]." Id. Scott called Plaintiff a "fucking retard" and that "[w]e don't allow fucking inmates to file grievances. If you got a problem we'll just beat the shit out of you. You really got a problem?" Id. Plaintiff feared for his life, and responded "no, ma['a]m" and returned to his housing unit without filing a grievance. Id. at ¶ 8. Twenty minutes after returning, Defendant Thomas, Defendant Hersh, and an unidentified Correctional Officer searched Plaintiff's cell, throwing his "neatly folded and ironed laundry . . . on the floor shaking them out." Id. at ¶ 9. Defendant Thomas also read Plaintiff's legal mail and "stomped on his legal papers and mail," while Hersh told him they "don't allowed retards to file grievances" and threatened to fight him. Id. Thomas told Plaintiff that "[t]his is how we deal with grievances here retard." Id. Plaintiff received two disciplinary "write ups" from the incident, alleging, among other things, that Plaintiff refused direct orders and had gang material in his locker. Id. at ¶¶ 10-11.

On or about April 7, 2009, Plaintiff requested mental health treatment from Correctional Officer Collins, who is not a named Defendant in this action and who arranged for "a nurse at medical" to speak with Plaintiff. Id. at ¶ 12. The nurse told Plaintiff that someone from mental health would be coming in a few days and asked if Plaintiff wanted to go to the infirmary until mental health assistance arrived, to which Plaintiff said no, because "that won't solve anything." Id.

On April 14, 2009, Plaintiff went to the law library, where the clerk, Defendant Raymond, told Plaintiff, "[o]h, you are that retard the C/Os told me about . . . . I can do whatever I want to you retard. . . . Get the hell out of my library retard." Id. at ¶ 13. Plaintiff received a disciplinary ticket for this incident. Id. When he returned to his housing, Plaintiff was confronted by Defendants Cambell and Micheals, who yelled at Plaintiff, saying "[y]ou are a fucking retard and a scumbag, you know that[?] . . . Stop l[y]ing about a disability and take your fucking medicine like a man;" they then asked Plaintiff for his "side of the story" regarding the incident in the library. Id. at ¶ 15. Apparently not satisfied with Plaintiff's synopsis, Defendant Micheals "came up beside [Plaintiff] and hit[] [Plaintiff] in the head several times, aggravating [his] Tra[u]matic Brain Injury." Id.

In April 2009, three disciplinary hearings for Plaintiff commenced. Two of the hearings, which started on April 9 and April 17, addressed disciplinary tickets Plaintiff received from Defendant Thomas and Defendant Ramond, respectively, and were presided over by Defendant Fletcher. Id. at ¶¶ 16 & 19. The other disciplinary hearing, presided over by Defendant Goodman, regarded a ticket from Defendant Scott and commenced on April 14. Id. at ¶ 17. Both Defendants Fletcher and Goodman stayed their hearings to undertake mental health assessments after Plaintiff told the hearing officers he had a mental disability. Id. at ¶¶ 16-17. Plaintiff claims that the proceedings restarted with no mental health assessment ever being undertaken. Id. at ¶¶ 18-21. Plaintiff complains that in Defendant Fletcher's disciplinary hearings, Fletcher interviewed witnesses outside Plaintiff's presence and investigated witnesses suitability for the hearing without Plaintiff's involvement, which "was b[ia]sed." Id. at ¶¶ 19 & 21.

Pursuant to the disciplinary ticket issued by Defendant Thomas, Plaintiff plead not guilty "to the gangs charge" and guilty to the other charges, wherefore Defendant Fletcher found Plaintiff guilty of all charges and sentenced him three months in a Special Housing Unit ("SHU"), three months loss of packages, commissary, and phone privileges, and a five-dollar surcharge. Id. at ¶ 18. Defendant Fletcher also sentenced Plaintiff to the same punishment with regard to the disciplinary ticket from Defendant Ramond. Id. at ¶ 21.*fn1 Defendant Goodman sentenced Plaintiff to thirty days "keepblock, suspended 30 days and deferred for 90 days," a five-dollar surcharge, and took away Plaintiff's yard, packages, commissary, and phone privileges for thirty days. Id. at ¶ 20. Plaintiff appealed the disciplinary hearing determinations from Defendants Thomas's and Ramond's tickets; all convictions were affirmed except "the gang charge," which was reversed on May 26, 2009 "by the Commissioner." Id. at ¶¶ 22-23.

On or about May 14, 2009, Plaintiff was transferred to Downstate Correctional Facility for an overnight stay. Id. at ¶ 24. Plaintiff was "sha[c]kled and cuffed to waist chains for about 4 hours, even though [he has] a mental illness." Id. The next day, Plaintiff was strip-searched and handcuffed and restrained again in order to be transferred to Lakeview Shock Correctional Facility, which was "about a 12 hour drive;" the drive made Plaintiff's shoulder muscles "very sore." Id. Plaintiff was not given a hot meal that day, but "was only given another dry boloney sandwich."

Id. Plaintiff does not attribute these acts to any specific Defendants. Around July 19, 2009, Plaintiff was transferred to Gowanda Correctional Facility. Id. at ¶ 25.

On or about July 21, 2009, Plaintiff had a medical doctor appointment with Dr. Bangsil,*fn2 who was concerned with Plaintiff's history of suicide attempts and put in a referral for Plaintiff "to see someone in mental health." Id. at ¶ 26. However, Plaintiff did not see someone from mental health until September 8, 2009; in the interim, he placed upwards of seven requests to "see M.H." Id. at ¶¶ 27-34 & 37. He also received a disciplinary ticket from Defendant Regan for smoking -- "even though Plaintiff is a non-smoker and allergic to cigarette smoke -- and Regan told him that, "I heard about you retard, you want treatment, I will throw you in the SHU." Id. at ¶¶ 35-36. When Plaintiff saw Defendant Millson, a psychologist from mental health who reviewed Plaintiff's medical history, Millson denied Plaintiff's specific request to see a psychiatrist. Id. at ¶¶ 32, 34, & 37.

On September 15, 2009, Plaintiff's hearing for the smoking disciplinary ticket commenced, presided over by Lieutenant Kolpack,*fn3 where Plaintiff again "was not allowed to see a psychiatrist." Id. at ¶ 38. On September 14, Plaintiff had a doctor appointment with Dr. Bangsil and Nurse Amborlosi,*fn4 who both called the Plaintiff "retard" and told him to "get out of here," to which Plaintiff responded he would "see them in court." Id. at ¶ 39. Plaintiff was then written up on September 16 by Defendant Acosta-Ortiz, who called Plaintiff "pea brain," "retard," and "scumbag." Id. at ¶ 40. Plaintiff's disciplinary hearing for this ticket occurred on September 21, where hearing officer Defendant Pawelczak "force[d] Plaintiff to enter a plea" even though "[Plaintiff has] M.H. issues and can't proceed;" at the hearing Plaintiff claimed that Defendant Millson's evaluation of

Plaintiff's mental health should be disregarded because he "is not competent to evaluate Plaintiff's M.H. condition because he is not a psychiatrist." Id. at ¶ 41. Plaintiff had another disciplinary hearing before Defendant Stachewiez, who Plaintiff claimed did not interview employee witnesses on the record. Id. at ¶ 43. Plaintiff was found guilty at all the above-mentioned hearings and lost all appeals, at least some of which were denied by Defendants Kadien and Fischer. Id. at ¶¶ 38 & 41-43.

Plaintiff characterizes himself as someone suffering from Traumatic Brain Injury, who is slow to process information and has outbursts of temper and impulsive behavior. Id. at ¶ 46. He outlines his claims against the multiple Defendants in forty-three various causes of action. See id. at ¶ 47 [hereinafter "Causes of Action"]. He is currently housed at Collins Correctional Facility. Id. at ¶ 2.

B. Procedural History

Plaintiff filed his civil rights Complaint on January 5, 2010, along with a Motion to Proceed In Forma Pauperis ("IFP"). Dkt. Nos. 1 & 2. On January 20, 2010, the Honorable Gary L. Sharpe,

United States District Judge, reviewed those filings and granted Plaintiff permission to proceed with this mater IFP. Dkt. No. 5. However, citing various inadequacies with Plaintiff's pleading, Judge Sharpe dismissed Defendants R. Regan and Pam Ramond from this action, dismissed all of Plaintiff's claims of "harassment," and denied Plaintiff's motion for injunctive relief. See generally id.

On February 2, 2010, Plaintiff filed a Motion for Reconsideration of Judge Sharpe's Decision and Order. Dkt. 10. In an almost identical filing on the same day, Plaintiff also brought a Notice of Appeal to the Second Circuit Court of Appeals from the January Order. Dkt. 11. In a Decision and Order issued on July 20, 2010,*fn5 Judge Sharpe re-instated Defendants Pam Ramond and R. Regan and denied Plaintiff's request to be appointed counsel. Dkt. No. 22. Finally, pursuant to Plaintiff's representations that he wished to "waive [his] challenge to loss of good time," see Dkt. No. 23, Judge Sharpe dismissed all claims set forth in the Complaint relating to the loss of good time credits in disciplinary hearings, as well as directed the Clerk of the Court to strike Plaintiff's submitted Amended Complaint as duplicative. Dkt. No. 27.*fn6

II. DISCUSSION

A. Standard of Review

On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). The trial court's function "is merely to assess the legal feasability of the complaint, not to assay the weight of the evidence which might be offered in support thereof."

Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ...


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