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Jovan Fludd v. Brian Fischer

August 28, 2012


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



Siragusa, J. Plaintiff Jovan Fludd filed this pro se action seeking relief under 28 U.S.C. § 1983. The case is now before the Court on Defendants' motion to dismiss the 96-page complaint and for summary judgment, filed January 12, 2011, ECF No. 6. For the reasons stated below, Defendants' application is granted.


In his complaint, Plaintiff alleges forty-one violations of his constitutional rights by eleven defendants. Compl., Oct. 25, 2010, ECF No. 1. For all relevant times, Plaintiff has been an inmate of New York State Department of Correctional and Community Services ("DOCCS"), housed at the Wende Correctional Facility ("Wende"). All of the named defendants are involved in some capacity with DOCCS.

On January 20, 2006, Plaintiff was convicted of multiple counts of offering a false instrument for filing, falsifying business records, and obstructing governmental administration. These convictions were all based upon Plaintiff's actions, while incarcerated on a prior conviction, of illegally filing UCC-1 financing statements falsely naming as debtors various judges, prosecutors, clerical staff and other individuals involved in his prior criminal prosecution.*fn1 The sentencing judge, the Honorable Arlene Goldberg, ordered restrictions on Plaintiff to be imposed by DOCCS during his incarceration, including mail restrictions. On or about September 28, 2006, in response to two incidents of Plaintiff circumventing his mail restrictions, Judge Goldberg issued a supplemental order directing Plaintiff's placement in the Special Housing Unit ("SHU"). Accordingly, Defendants held Plaintiff in SHU. On March 18, 2008, Judge Goldberg's supplemental order was overturned by the New York State Appellate Division, holding that the sentencing court lacked authority to issue a post-judgment order controlling confinement. Fludd v. Goldberg, 51 A.D.3d 153 (N.Y. App. Div. 2008).

On March 20, 2008, defendant Anthony Annucci, Deputy Commissioner of DOCCS, ("Annucci") directed defendant Robert Kirkpatrick, Superintendent of Wende, ("Kirkpatrick") to draft an administrative segregation recommendation regarding Plaintiff, which was completed by defendant Corrections Captain Joseph Noeth ("Noeth"). The recommendation was based on a September 2006 search of Plaintiff's cell that found more UCC-1 forms (involving DOCCS employees), his prior convictions for false UCC-1 forms, and multiple violations of his mail restrictions. Pl.'s Ex. F, ECF No. 1. Defendant Hearing Officer Curtis Drown, ("Drown") conducted an administrative hearing that concluded on April 1, 2008. Drown ordered that "[Plaintiff] be placed in administrative segregation because of the threat [he] present[s] to this or any NYS DOCS facility in which [he] may be incarcerated." Id. Drown's decision was later affirmed by defendant Norman Bezio, Director of Special Housing Unit at Wende ("Bezio") on administrative appeal, on or about June 18, 2008. On or about April 14, 2008, Plaintiff (represented by an attorney) submitted an Article 78 petition to annul the April 1, 2008 administrative segregation decision. Plaintiff's Article 78 petition was denied by the New York State Appellate Division, which affirmed the administrative segregation hearing decision. Fludd v. New York State Dept. of Corr. Servs., 62 A.D.3d 1149 (N.Y. App. Div. 2009). As a result, Defendants continued to hold Plaintiff in administrative segregation. Plaintiff claims that his SHU cell is poorly ventilated, has a plexiglass door, and is often unsanitary. See Compl. ¶¶ 214--20, ECF No. 1; Defs.' Rule 56 Statement ¶ 13, ECF No. 7.

On April 10, 2008, April 17, 2008 and June 3, 2008, Kirkpatrick imposed correspondence restrictions on Plaintiff. Plaintiff filed an administrative grievance with the Central Office Review Committee ("CORC") to protest the mail restrictions. Upon review, CORC concluded that "the mail restrictions in place are the result of the grievant's harassment of Department employees and private citizens via the correspondence program, and are rationally related to a legitimate penological interest in maintaining the security and order of the correctional facility." Defs. Ex. B at 32, ECF No. 9-2. In response, Plaintiff submitted a new Article 78 petition to annul the DOCCS mail restrictions. The state court held that Plaintiff "failed to establish that [DOCCS employees] acted arbitrarily and capriciously" in the management of his mail and denied his request for Article 78 relief. Defs.' Ex. B at 68, ECF No. 9-2.

On or about June or July 2009, defendant Deputy Superintendent Karen Crowley ("Crowley") implemented a procedure that limited law library access for all SHU inmates. The new procedure was in response to an incident of law books being destroyed by SHU inmates. In accordance with this policy, SHU inmates were provided with photocopies of law books rather than being given the actual books themselves. The policy was limited in duration and by July 6, 2010, SHU inmates were permitted access to the law books again.

In this § 1983 action, Plaintiff asserts several claims.*fn2 First, Plaintiff alleges that his constitutional rights were violated by Defendants' enforcement of Judge Goldberg's court orders. Plaintiff further alleges that the administrative segregation hearing decision after Judge Goldberg's orders were vacated also violated his constitutional rights. Second, Plaintiff alleges that while in administrative segregation he was denied meaningful status reviews and, for two time periods, he was denied status reviews entirely. Third, Plaintiff alleges that the mail restrictions imposed by Defendant Kirkpatrick in April-June 2008 violated his First Amendment rights. Fourth, Plaintiff alleges that the restriction of law library materials violated his right of access to court. Finally, Plaintiff alleges that the conditions of his cell in SHU violated his Eight Amendment rights to be free from cruel and unusual punishment. Defendants filed this motion on January 12, 2011, ECF No. 6.*fn3


Motion to Dismiss

The U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), clarified the standard to be applied to a 12(b)(6) motion:

Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff's obligation to provide the grounds of his entitlement to relief 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, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]" as opposed to merely conceivable.)

When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). On the other hand, "[c]onclusory allegations of the legal status of the defendants' acts need not be accepted as true for the purposes of ruling on a motion to dismiss." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995)(citing In re American Express Co. Shareholder Litig., 39 F.3d 395, 400-01 n. 3 (2d Cir.1994)). As the Supreme Court clarified in Ashcroft v. Iqbal, 556 U.S. 662 (2009):

Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555, (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d at 157-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not "show[n]"-"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).

Iqbal, 556 U.S. at 678--79 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).

Inasmuch as plaintiff is proceeding pro se, this Court must, of course, follow the direction of the the Second Circuit, that, A pro se complaint should not be dismissed unless "it appears beyond doubt that the plaintiffs can prove no set of facts in support of [their] claims which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When considering motions to dismiss a pro se complaint such as this, "courts must construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (internal quotation marks omitted). This is especially true when dealing with pro se complaints alleging civil rights violations. See Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001). Accordingly, ...

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