CURTIS NIMMONS, Pro Se, 89-A-2623, Bellevue Mens
Shelter, New York, New York
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, STATE OF NEW YORK, Attorney for Defendants. GEORGE MICHAEL ZIMMERMANN, Assistant Attorney General, of Counsel, Buffalo, New York.
REPORT and RECOMMENDATION
LESLIE G. FOSCHIO, Magistrate Judge.
This case was referred to the undersigned by Honorable Richard J. Arcara on May 13, 2012, for pretrial matters, including report and recommendation on dispositive motions. The matter is presently before the court on Defendants' motion to dismiss for failure to state a claim (Doc. No. 9), filed May 9, 2012.
Plaintiff Curtis Nimmons ("Plaintiff"), proceeding pro se, commenced this civil rights action on September 27, 2011, while incarcerated at Groveland Correctional Facility ("Groveland"), in Sonyea, New York, alleging Defendants violated Plaintiff's rights under the First and Fourteenth Amendment in connection with the confiscation of religious materials from Plaintiff and subsequent charging Plaintiff in a false misbehavior report. Both Defendants to this action, are employees of New York Department of Corrections and Community Supervision ("DOCCS"), including DOCCS Commissioner Brian Fischer ("Fischer"), and Acting Groveland Superintendent K. Flanagan ("Flanagan") ("Defendants"). Plaintiff alleges three claims for relief including (1) Fischer violated his First Amendment right to religious freedom by confiscating from Plaintiff materials regarding The Nation of Gods and Earths ("NGE"), for which Plaintiff was subsequently disciplined for possession ("First Claim"); (2) Fischer twice disciplined Plaintiff for the same act, in violation of the First and Fourteenth Amendments ("Second Claim"); and (3) Flanagan violated Plaintiff's Fourteenth Amendment right to due process by affirming a procedurally flawed disciplinary hearing disposition finding Plaintiff guilty of several prison disciplinary infractions ("Third Claim").
In an order filed November 28, 2011 (Doc. No. 3) ("November 28, 2011 Order"), District Judge Michael A. Telesca dismissed the Second Claim for failure to allege facts establishing either Defendant's personal involvement in having Plaintiff charged a second time for the same prison infraction, allowing Plaintiff to file an amended complaint showing the requisite personal involvement if Plaintiff intended to pursue such claim. November 28, 2011 Order at 1-2. To date, Plaintiff has not filed any amended complaint.
On May 9, 2012, Defendants filed the instant Motion to Dismiss (Doc. No. 9) ("Defendants' Motion"),  supported by the attached Memorandum of Law in Support of the Defendants' Motion to Dismiss (Doc. No. 9-1) ("Defendants' Memorandum"). In opposition to Defendants' motion, Plaintiff filed on May 22, 2012, an affirmation (Doc. No. 12) ("Plaintiff's Affirmation"). Defendants did not file any reply in further support of their motion. Oral argument was deemed unnecessary.
Based on the following, Defendant's Motion (Doc. No. 9) should be GRANTED; the Complaint should be DISMISSED without prejudice.
The facts are separately discussed with regard to each of Plaintiff's three claims.
Plaintiff Curtis Nimmons ("Plaintiff" or "Nimmons"), is an inmate in the custody of New York Department of Corrections and Community Supervision ("DOCCS"). For his First Claim, Plaintiff alleges that he has, for more than 30 years, considered himself to be a member of the Nations of Gods and Earths ("NGE") religion, although in 2007, while incarcerated at Mohawk Correctional Facility ("Mohawk"), Plaintiff registered his religion as Rastafarian to avoid having to cut his dreadlocks. At some unspecified time, at an unspecified correctional facility ("the correctional facility"), unidentified prison officials, based on a misapplication of DOCCS Rule 105.14 ("Rule 105.14) (prohibiting the participation in activities or possession of materials related to unauthorized organizations), confiscated from Plaintiff drafts of a book Plaintiff was writing on incarcerated sincere NGE members because Plaintiff is not registered with DOCCS as an NGE member. On December 27, 2009, while Plaintiff was in the correctional facility's weight room with four other inmates, Corrections Officer Goodemote ("Goodemote"), approached the group, requesting their identification cards. The inmates complied and Goodemote took the identification cards to an office where Goodemote remained with the identification cards until one of the inmates approached Goodemote to retrieve the cards and returned each to its respective owner. Goodemote then exited the office and again approached the table in the weight room where the inmates remained seated and instructed Plaintiff to "get your stuff and come with me." Complaint, First Claim ¶ 15. Goodemote escorted Plaintiff out of the weight room and told Plaintiff to go to the gym next door.
On Wednesday, December 30, 2009, Plaintiff was working at his assigned program in the correctional facility's messhall when he was approached by Corrections Officer Crescent ("Crescent"), and Sergeant Willson ("Willson"), instructed to "get his stuff, " Complaint ¶ 12, and was escorted to the correctional facility's special housing unit ("SHU"), allegedly as a result of the December 27, 2009 encounter. Complaint, First Claim ¶¶ 12-13. On Thursday, December 31, 2009, Corrections Officer W. Peck ("Peck"), served Plaintiff with an inmate misbehavior report ("first misbehavior report"), charging Plaintiff with violating seven of DOCCS disciplinary rules, including possession of stolen property (116.13), stealing/misuse of state property (116.10), possession of contraband (113.23), unauthorized assembly (105.10), unauthorized exchange (113.15), unauthorized organization (105.14), and altered property (116.11). Following a Tier III prison disciplinary hearing on the first misbehavior report, Plaintiff was found guilty on all seven charged violations, and sentenced to one year in special housing unit ("SHU"), and withdrawal of all privileges, and one year loss of good time. Complaint, First Claim ¶ 17. Plaintiff was transferred to Southport Correctional Facility ("Southport") to serve the SHU term.
Plaintiff appealed the guilty disposition on the first misbehavior report to Defendant DOCCS Commissioner Brian Fischer ("Fischer"), following which the disposition was modified on February 18, 2012, with Plaintiff re-sentenced to three months confinement in SHU, six months loss of recreation, packages, and phone privileges, and three months loss of good time. On April 2, 2010, Plaintiff was transferred from Southport to Attica Correctional Facility ("Attica"). On April 8, 2010 Plaintiff was issued his personal property, subsequent to which an unidentified corrections officer spent two hours searching the property, confiscating two letters and all Plaintiff's "cassette tapes that were returned to him from Mohawk tier office at Southport." Complaint, First Claim ¶ 19. Plaintiff then showed the corrections officer conducting the personal property search "Exhibit No. 14, " which Plaintiff describes as "the list of items returned from Mohawk tier office submitted with Plaintiff Article 78 in the same matter." Complaint, First Claim ¶ 20. Plaintiff told the corrections officer the two letters and cassette tapes the corrections officer had confiscated had been returned to Plaintiff "as a result of the Tier III that he was in SHU for and was sent to Attica as a result of it being modified." Id. Plaintiff was then charged in an inmate misbehavior report ("second misbehavior report"), with two violations of DOCCS disciplinary rules, including possession of contraband (113.23), and unauthorized group (105.14), which Plaintiff maintains were "the same exact charges on the prior Tier III.... " Id., First Claim ¶ 21. Plaintiff showed Exhibit No. 14 to Acting Captain D. Barawski ("Barawski"), at a disciplinary hearing on the second misbehavior report, conducted on April 17, 2010, by Barawski.
On June 8, 2010, Plaintiff appeared before the parole board for his fifth parole hearing, but the hearing was adjourned for 90 days pending the decision on Plaintiff's appeal of the April 17, 2010 Tier III hearing. When the parole hearing recommenced on September 8, 2010, Plaintiff was denied parole for another two years.
Plaintiff alleges he "was denied a program at Attica when he came off of keeplock after doing six months where he filed a grievance which was denied." Complaint, First Claim ¶ 23. Plaintiff further alleges he "was subject to being denied to attend the messhall for meals, denied showers and recreation where he filed another grievance and wrote the superintendent. Plaintiff['s] grievance was informally resolved where he was moved to another block and able to attend the messhall, get shower and recreation." Id. ¶ 24. According to Plaintiff, when he received his personal property, more than 100 pages were missing from the second part of his autobiography, as well as materials pertaining to a third book Plaintiff was writing, i.e., Incarcerated Sincere Members of the Nation of Gods and Earths. Id., First Claim ¶ 25.
Plaintiff alleges that Defendant Fischer, "as Chief Administrator violated the principle of administrative res judicata" when Plaintiff was served with the second misbehavior report for possession of the same materials for which Plaintiff had already served time in ...