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Annette Vogelfang v. Deputy Superintendent Capra

March 13, 2012


The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:


Defendants Ernest Maddox, Donald Selsky, Norman Bezio, Nurse Tracy Jewell, C.O. Shavo, C.O. Nunez, C.O. Butler, C.O. Simmons, C.O. Bottone, C.O. Derry, C.O. McCants, Mary Hayo, Brian Fischer, Captain Fitzgerald, Superintendent Perez, Thomas Eagan, Karen Bellamy, Deputy Superintendent for Security Capra, C.O. Tardibono and C.O. Holmes (collectively, "defendants") move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint of pro se plaintiff Annette Vogelfang ("Vogelfang"), who asserts 25 claims under 42 U.S.C. § 1983 contesting the conditions of her confinement and challenging the conduct of numerous correction officers at Bedford Hills Correctional Facility. For the following reasons, defendants' motion is granted as to all but three of Vogelfang's claims.


On May 10, 2010, Vogelfang, proceeding pro se and presently incarcerated at Bedford Hills Correctional Facility under the supervision of the New York State Department of Corrections, filed a Complaint in this Court. That Complaint consists of 10 documents, all written or sworn to in or about March 2010. Because those documents make disparate allegations and are not readily synthesized into a single narrative, the Court summarizes Vogelfang's allegations by the document they are contained in.

In the first two documents, a form complaint and accompanying affidavit dated March 16, 2010, Vogelfang alleges that while imprisoned at Bedford Hills, she has been subjected to cruel and inhumane punishment, in part by being placed in the Special Housing Unit ("SHU") for round-the-clock confinement. Vogelfang asserts that she was placed in the SHU as a result of false and malicious misbehavior reports that defendants filed against her. Vogelfang also claims that "all staff" at Bedford Hills have used force against her in retaliation for her complaint that she was sexually assaulted by an unnamed correction officer.

In the third document, Vogelfang alleges that her due process rights, and internal Department of Corrections protocols, have been violated because Bedford Hills does not provide electronic recordings of disciplinary proceedings to inmates until after the time to appeal a disciplinary determination has elapsed. Vogelfang alleges that defendants McCants and Capra are responsible for overseeing this program.

In the fourth document, Vogelfang claims that her due process rights were violated when a disciplinary proceeding was not electronically recorded, and when a disciplinary proceeding was not commenced within seven days of her release from the Mental Health Unit. Vogelfang alleges that the proceeding did not occur until 25 days after the incident. She asserts that an extension of time, granted to prison officials, to serve a disciplinary ticket on her violated her constitutional rights.

In the fifth document, Vogelfang makes an array of complaints about the conditions of her confinement. These include that: (1) she has been denied heat and food on some occasions; (2) she has been found guilty at disciplinary hearings initiated by unsubstantiated and false misbehavior reports; (3) she has been denied the right to practice her religion, in violation of the First Amendment; (4) she has been denied court-ordered visits with her son; (5) that she has been denied telephone privileges; (6) she has been denied the right to petition the government for redress of grievances, in violation of the First Amendment; (7) defendants Bellamy and Eagan routinely deny grievance appeals and uphold determinations by the prison superintendent; (8) defendants Selsky and Bezio routinely affirm unjust and improper disciplinary hearings despite the lack of evidence of wrongdoing; (9) defendant Fitzgerald routinely classifies all of Vogelfang's misbehavior reports as Tier III infractions; (10) she has been denied the use of a computer; (11) her legal documents have been improperly downloaded by prison personnel outside of her presence; (13) defendant Fischer has been put on notice of these alleged deprivations yet has done nothing; (14) she has been denied her hour of exercise in the yard; (15) defendant Jewell, a nurse, has been deliberately indifferent to Vogelfang's serious medical needs; and (16) defendant Superintendent Williams has ignored Vogelfang's letters airing these grievances.

In the sixth document, Vogelfang makes several complaints about two Inmate Misbehavior Reports ("IMRs") filed against her, the process arising out of those IMRs, and other unrelated interactions with correction officers. First, she claims that defendant Derry denied her an hour of exercise and "performed a degrading sexual act" in front of her. Vogelfang alleges that she filed a grievance against Derry for these transgressions and that, in retaliation, Derry filed a false IMR against her, which resulted in her spending three months in the SHU. Second, Vogelfang claims that defendant Butler denied her recreation time and filed a false IMR against her. In connection with these two false IMRs, Vogelfang contends that her due process rights were violated because the outcomes of the disciplinary hearings were pre-determined and defendant Hayo did not allow her to call witnesses in her defense and conducted a "cruel and ridiculous" hearing on the IMRs. Third, Vogelfang alleges that defendant Holmes harassed her by pat-frisking her when only female correction officers are permitted to do so. Additionally, Vogelfang contends that, on March 2, 2010, defendant Tardibono pushed her into concrete when attempting to intervene in an episode of prisoner non-compliance. Vogelfang also claims that Tardibono dragged her by the handcuffs into a corner, where Tardibono and defendant Shavo slammed her into a metal chair and pulled painfully on her shackles. Finally, Vogelfang claims that non-defendant C.O. Reese tightened her handcuffs unnecessarily on a trip out of the prison for medical treatment.

The seventh document, functionally an extension of the sixth, elaborates on the March 2, 2010 incident involving defendants Tardibono and Shavo. On that date, Vogelfang appeared before defendant Hayo for the disciplinary proceeding described in document six. Plaintiff asserts that, because the outcome of the proceeding was pre-determined, she got up to leave the hearing before it concluded but was grabbed and detained by defendant Velez. Vogelfang further alleges that Velez called to Tardibono and Shavo for assistance, whereupon they dragged her into a corner and slammed her into a chair as described above.

The eighth document was construed by the Honorable John G. Koeltl, United States District Judge, to whom this case was previously assigned, as a motion for a preliminary injunction. That motion was denied on October 4, 2010. See Dkt. 28.

The ninth document complains generally of Bedford Hills' treatment of Vogelfang, specifically the allegedly-excessive time she has been placed in the SHU. Vogelfang asserts that she made an idle threat against another inmate, and that this transgression caused her to be put in the SHU for approximately six months, although previous similar behavior had not produced such a response.

The tenth and final document is in narrative form and contains a large number of allegations. First, Vogelfang alleges that at a January 8, 2008 disciplinary hearing initiated by defendant Bottone, she was deprived of due process by, inter alia, not being served with the IMR until under 24 hours before the hearing, not being allowed to ask all questions she wanted of a witness, and being removed from the hearing. Vogelfang further complains that defendant Maddox, the hearing officer at the proceeding, questioned witnesses outside of her presence. As a result of these deficiencies, Vogelfang claims, she was assigned to the SHU for approximately six months and lost approximately three months of good-time credit. Second, Vogelfang further asserts that this course of events was a form of retaliation for her claim of sexual assault against a correction officer. Third, Vogelfang contends that defendant Nunez has harassed her for years by, inter alia, destroying her legal documents, hitting, pushing, pulling, and kicking her. She further claims that defendants Nunez and Bottone have conspired to deny her breakfast in the morning-which, she claims, is a necessary accompaniment to her prescription medication-and have written false IMRs and denied her recreation time. Fourth, Vogelfang asserts that she was denied access to the law library by a non-defendant correction officer, who also wrote false IMRs against her.*fn2 Fifth, Vogelfang claims that at a March 14, 2008 disciplinary hearing conducted by defendant Maddox, she requested the ability to use an assistant but that request was denied; that Maddox ordered Vogelfang removed for non-compliance; and that a non-defendant officer then dragged Vogelfang 300 feet in handcuffs, after which she requested, but was refused, medical treatment. While Vogelfang was not present, the hearing allegedly went on without her, and she was given 60 days "keeplock" confinement as a result. Fifth, Vogelfang alleges that, on or about March 21, 2008, defendant Nunez hit her in her back and shoulders, and that she was again denied medical treatment. Sixth, Vogelfang claims that defendant Bottone harassed her, causing her to be given another 60-day term in the SHU. Seventh, Vogelfang asserts that defendant Bottone came to her cell with another officer and wrote another false IMR resulting in another 60-day period in the SHU. Eighth, she reiterates her argument that the defendants' course of conduct is in retaliation for her allegation that a correction officer sexually assaulted her. Ninth, she claims that defendant Simmons tormented her by filing numerous IMRs and conducting an illegal cell search, at the end of which Simmons took pens belonging to her. Tenth, and finally, Vogelfang alleges that she had been without heat for a period of time, and that on December 4, 2008, there was no hot water for her to take a shower.

Taking all documents together, Vogelfang's claims asserted in the complaint can be summarized as follows:

Claim Defendant(s) Responsible

1 General complaint of excessive force/cruel and unusual punishment in retaliation for her sexual assault complaint against a correction officer All staff of Bedford Hills (none specifically identified)

2 Failure to record disciplinary hearings pursuant to Department of Corrections protocol Defendant McCants, Defendant Capra (as administrators of the program), Defendant Perez (as Superintendent)

3 Failure to conduct a disciplinary proceeding within seven days "Albany" (none specifically identified)
4 Denial of heat/hot water None identified
5 Failure to produce evidence of disciplinary infractions because those infractions never occurred None identified

6 Denial of right to practice religion None identified

7 Denial of visitation with children None identified

8 Denial of telephone privileges None identified

9 Denial of right to petition the government for redress of grievances None identified

10 Erroneous and summary affirmance of grievance appeals in disregard of law Defendant Bellamy, Defendant Eagan
11 Conducting improper hearings and making determinations unsupported by evidence Defendant Selsky, Defendant Bezio

12 Uniform categorization of infractions as Tier III Defendant Fitzgerald

13 Denial of the use of a computer Defendant Superintendent Perez

14 Downloading of her legal work outside of her presence None identified

15 Failure to correct unconstitutional conditions Defendant Fischer, Defendant Williams

16 Denial of hour of exercise in yard Defendant Derry, Defendant Butler, Defendant Fitzgerald

17 Deliberate indifference to serious medical need Defendant Jewell, Defendant Nunez

18 Filing of false IMRs Defendant Derry, Defendant Butler, Defendant Bottone, Defendant Simmons, Defendant Nunez

19 Improper pat-frisk by opposite-sex correction officer Defendant Holmes

20 General harassment/sexual harassment Defendant Nunez, Defendant Bottone, Defendant Derry

21 Illegal cell search Defendant Simmons

22 Denial of food Defendant Nunez, Defendant Bottone

23 Denial of due process in disciplinary proceedings (e.g., removing plaintiff from hearing, restricting ability to call ...

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