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Kenneth J. Phelan v. Senior Counselor S. Zenzen

November 6, 2012


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



This is an action pursuant to 42 U.S.C. § 1983, brought by Kenneth Phelan ("Plaintiff"), a prisoner in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Now before the Court is Defendants' motion to partially dismiss (Docket No. [#12]) the Complaint for failure to state a claim. The application is granted in part and denied in part.


The following facts are taken from the Complaint [#1] and are assumed to be true for purposes of this Decision and Order. At all relevant times Plaintiff was housed at Five Points Correctional Facility ("Five Points"). The eight Defendants, whose full names are not contained in the record, were employed by DOCCS at Five Points. S. Zenzen ("Zenzen") was Deputy Superintendent of Programs, and Defendant Colvin ("Colvin") was Deputy Superintendent for Security. Defendants Parish ("Parish"), Jones ("Jones") and Netti ("Netti") were Corrections Sergeants. Defendants Bennett ("Bennett"), McIntyre ("McIntyre") and Evans ("Evans") were Corrections Officers.

Although the Complaint does not explicitly say so, it appears that at all relevant times Plaintiff was confined in the Special Housing Unit ("SHU"). In that regard, Plaintiff indicates that his meals were brought to his cell on trays, which would not be the case if he were in general population. See, Complaint ¶ 23c.

Between June 2010 and September 2010, Plaintiff was not allowed one hour of recreation or "yard time" each day. It appears that Plaintiff was deprived of recreation as a punishment, because he had "refuse[d] to come in from the yard." Complaint ¶ 18. Plaintiff contends that this was unfair, because he was "not on notice" that refusing to come in from the yard could result in such a deprivation order. Id. He further states that he has a constitutional right to at least one hour of recreation per day. Id. Apparently, Netti authorized the deprivation order. Id. at ¶ 19. Plaintiff complained about the deprivation order to Parish, Jones and Colvin.

In or about August 2010, Plaintiff field a grievance about being denied yard time. Later, Bennett went to Plaintiff's cell and threatened to beat him if he did not withdraw the grievance. Plaintiff withdrew the grievance.

Between July 28, 2010 and August 6, 2010, Plaintiff was not allowed to have a shaving razor. Plaintiff implies that the razor deprivation order was imposed because he refused to take his psychiatric medications. Complaint ¶ 20. Plaintiff maintains that he has a right to refuse to take his medications without being punished. Id. The Complaint is confusing on this point, though, since it also states that Plaintiff "was not allowed to get [his] daily psyche meds" on July 28, 2010, and that McIntyre "refused to give" him the medication. Id. at ¶ 9. Viewed together, these statements seem to indicate that Plaintiff was denied his psychiatric medications, and then falsely blamed for having refused them. The decision to deny him a razor was made by Jones and McIntyre. Plaintiff alleges that the deprivation of a razor "forced [him] to live in unsanitary dirty conditions." Complaint ¶ 8.

On September 13, 2010, Evans entered Plaintiff's cell and confiscated his Imitrex pain medication, which Plaintiff states was for "migraines and sinus problems." Complaint ¶ 21. Plaintiff states that Jones was also present. Later that day, Plaintiff "suffered severe migraine attack, serious pain and had breathing problems." Id. at ¶ 22.

On July 11, 2010, July 16, 2010 and July 21, 2010, Zenzen refused to mail three pieces of Plaintiff's outgoing legal mail, apparently because Plaintiff did not have sufficient funds in his inmate account to cover the cost of postage. Complaint ¶ 10 ("Since I have no money on my books, defendant Zenzen refused to allow this to go out."). Zenzen did not return the pieces of mail to Plaintiff until ten days later. Plaintiff maintains that Zenzen thereby denied him access to the courts, and specifically, that Zenzen caused him to miss filing deadlines in the Second Circuit Court of Appeals, the U.S. District Court for the Northern District of New York and the U.S. District Court for the Western District of New York. Complaint ¶ ¶ 10, 14. Zenzen also refused to allow Plaintiff to make photocopies of legal documents, apparently because Plaintiff had no money in his inmate account to pay for copies. Id. at ¶ 17; see also, id. at p. 20. Plaintiff maintains that prison officials are required to advance inmates the costs of postage and photocopying. See, e.g., Id. at p. 19 (Asking the Court to order Zenzen to mail Plaintiff's correspondence, "even if the inmate has no funds in his account.").

Plaintiff filed inmate grievances regarding Zenzen's refusal to send out his legal mail and the razor deprivation order. Bennett threatened to beat Plaintiff if he did not withdraw the grievances, which caused Plaintiff to withdraw them.

On June 30, 2010, a cell shield was placed on Plaintiff's cell. The Deprivation Order, which the Court will consider on this motion since it is incorporated by reference in to the Complaint and/or integral to it, states that it was imposed because Plaintiff spit on a staff member. See, Pl. Resp. to Def. Motion [#15]. Plaintiff maintains that the cell shield order was improper, because, "There is no posted rule that says I can be put on cell shield if you throw things outside your cell." Complaint [#1] ¶ 24. Plaintiff further contends that the shell shield order was improper because it was not authorized by the Deputy Superintendent of Security as required by "regulations," and because he did not receive a hearing. Id. at ¶ 13. Plaintiff complained about the cell shield to Colvin, Jones and Parish.

On August 15, 2010, Plaintiff attempted to mail correspondence to the New York Times and USA Today newspapers, but Zenzen refused to send out the correspondence. As noted earlier, Zenzen's decision was apparently due to the fact that Plaintiff had no money to pay for postage. Plaintiff alleges that Zenzen's refusal to mail those pieces of mail denied him "freedom of the press." Complaint ¶ 16.

In September 2010, Jones and Evans confiscated Plaintiff's pillow, "for several nights," which cause him to experience neck pain. Complaint [#1] ¶ 23 & p. 15a.

Colvin also issued a deprivation order, directing that Plaintiff be given a styrofoam food tray, instead of a standard tray, and that he not receive eating utensils. Complaint [#1] ¶ 23(c). Plaintiff maintains that Colvin was motivated by discriminatory animus, because Plaintiff is "a disabled Irishman with red hair." Id.

On May 19, 2011, Defendants filed the subject motion [#12] to dismiss for failure to state a claim. More specifically, Defendants' Notice of Motion [#12] requests "judgment dismissing the Complaint in part." (emphasis ...

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