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Jones v. Fischer

United States District Court, Second Circuit

August 7, 2013

ROBERT JONES, Plaintiff,
BRIAN FISCHER et al., Defendants.

Robert Jones, Pro Se, 3491201713, East Elmhurst, NY, for the Plaintiff.

ERIC T. SCHNEIDERMAN, New York State Attorney General, RICHARD LOMBARDO, Assistant Attorney General, The Capitol, Albany, NY, for the Defendants.


GARY L. SHARPE, Chief District Judge.

I. Introduction

Plaintiff pro se Robert Jones commenced this action against defendants Brian Fisher, Kenneth S. Perlman, Mr. Phillips, Joseph Smith, William R. Steinhaus, Osbourne McKay, and various John and Jane Does pursuant to 42 U.S.C. § 1983, the Americans withe Disabilities Act (ADA), [1] the Rehabilitation Act, [2] New York State Department of Corrections and Community Services (DOCCS) Directive 2614, and the Religious Land Use and Institutionalized Persons Act.[3] ( See Am. Compl. ¶ 12, Dkt. No. 7.) Jones' six enumerated claims pertain to: discrimination under the ADA, Rehabilitation Act, and DOCCS Directive 2614; the conditions of his confinement; wrongful segregation; deliberate indifference to serious medical needs; interference with the right of free exercise of religion; and retaliation. ( See id. ¶¶ 45-71.) He expressly seeks a declaration that defendants violated his civil rights, and compensatory and punitive damages; implicit in his Amended Complaint is his pursuit of injunctive relief requiring reasonable accommodations for his alleged disability at a DOCCS facility. ( See id. ¶ 30, at 11-12.) After Steinhaus was dismissed as a party by the court sua sponte, ( see Dkt. No. 8), the remaining defendants interposed an answer, and, eventually, moved for summary judgment, ( see Dkt. Nos. 27, 53.) Jones subsequently requested an extension of time to file his response, which motion was granted by text only order dated January 24, 2013; however, he failed to timely file a response. ( See Dkt. No. 56.) In a Report-Recommendation and Order (R&R) dated March 21, 2013, Magistrate Judge Christian F. Hummel recommended that defendants' motion be granted and Jones' Amended Complaint be dismissed. ( See Dkt. No. 57.) For the reasons that follow, the R&R is adopted in its entirety.

II. Background

Jones is an inmate in the custody of DOCCS. ( See Defs.' Statement of Material Facts (SMF) § 3, Dkt. No. 53, Attach. 6.) On February 24, 2011, Jones alleges that he was transferred from Marcy Correctional to Wallkill Correctional for the purpose of receiving vocational training in the "Corcraft DSS/D[O]CCS Eyeglass Project Optical Lens Laboratories, " and for housing. (Am. Compl. ¶ 26; see Defs.' SMF ¶ 6.) Jones further claims that, upon intake at Wallkill, DOCCS officials noted that he needed the assistance of crutches to ambulate, which rendered him ineligible for housing given certain architectural limitations at that facility. ( See Defs.' SMF ¶ 7; Am. Compl. ¶¶ 27-31.) Because of his "disability, " Jones "was immediately transferred to Shawangunk" Correctional. (Am. Compl. ¶ 32; see Defs.' SMF ¶ 7.)

Once at Shawangunk, Jones claims that he was quarantined in the infirmary from February 21, 2011 to April 2011, and that while therein, he was not provided adequate heating or clean water, which rendered the conditions of his confinement "unfit for human habitation." (Am. Compl. ¶¶ 34-35; see Defs.' SMF § 8.) In early April 2011, [4] Jones alleges that he was transferred back to Marcy in retaliation for filing a grievance "demanding a [r]easonable [a]ccomodation or to be transferred to a suitable handicapped accessible facility within five working days." (Am. Compl. ¶¶ 41-42.) Jones commenced this action in July 2011. ( See Dkt. No. 1.) Soon thereafter, he filed the operative Amended Complaint. ( See Am. Compl.)

III. Standard of Review

Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of the magistrate judge for clear error.[5] See id.

IV. Discussion

As a threshold matter, the court must determine what to make of the document filed by Jones titled "Plaintiff[']s Objection to Report & Recommendation" (hereinafter "the objections"), and his late-filed response to defendants' summary judgment motion. ( See Dkt. Nos. 58, 59.) In the objections, Jones takes issue with the R&R because, according to him, his claims were "dismissed [f]or failure to respond" by February 5, 2013. (Dkt. No. 58 ¶ 4.) Jones claims that he placed three copies of his response in a mailbox at the facility in which he is housed on February 5, 2013, and that, because of his indigence and "an unwritten [prison] rule, " his mail was delayed. ( Id. at 1-2.)[6] The objections also include a separate letter, the subject of which is "Mail Box Rule, " that reiterates Jones' contentions and provides legal argument about the prisoner mailbox rule. ( See Dkt. No. 58, Attach. 1.)

The objections offer no other critique of the R&R, and can be summarily rejected because Jones' only relevant attack on the R&R - that his failure to respond was the basis for dismissing his Amended Complaint, ( see Dkt. No. 58 ¶ 4)-is entirely mistaken. Indeed, the R&R acknowledged that Jones failed to timely respond despite requesting and receiving an extension of time, but, nonetheless, explained that "[e]ven in the absence of a response, defendants [would be] entitled to judgment only if the material facts demonstrate[d] their entitlement to judgment as a matter of law." (Dkt. No. 57 at 3.)

Jones' response to defendants' summary judgment motion is a more complicated matter. The cover letter to that submission, which is dated January 5, 2013, is the same letter regarding the prisoner mailbox rule that was filed as part of the objections. ( Compare Dkt. No. 59, with Dkt. No. 58, Attach. 1.) The affidavit of service included with Jones' memorandum of law in response to defendants' summary judgment motion, indicates that, on February 5, 2013, Jones placed three copies of his response papers in a mailbox at the facility where he is housed. ( See Dkt. No. 59, Attach. 1 at 26.) While the court has some doubts about the authenticity of the affidavit of service, [7] in an abundance of caution, it will treat Jones' response as properly filed objections to the R&R.[8] In light thereof, given the content of the response, the court conducts a de novo review of the issues. See Almonte, 2006 WL 149049, at *6.

After careful consideration of the arguments advanced by Jones in his response to defendants' summary judgment motion, Judge Hummel's conclusion that dismissal is appropriate is correct largely for the reasons stated in the R&R. In addition to the analysis provided therein, two additional points ought be made.

First, as to whether or not Jones can obtain declaratory relief given the prospect that his transfer out of the facilities about which he complains would moot his claim for such relief, "[t]he Eleventh Amendment and the principles governing the issuance of declaratory judgments prohibit the award of a declaration that state officials' prior conduct violated federal law.'" La Scalia v. Driscoll, No. 10-CV-5007, 2012 WL 1041456, at *8 (E.D.N.Y. Mar. 26, 2012) (quoting Rothenberg v. Stone, 234 F.Supp.2d 217, 221 (E.D.N.Y. 2002)); see Ward v. Thomas, 207 F.3d 114, 120 (2d Cir. 2000). Thus, dismissal of that aspect of his Amended Complaint is undoubtedly warranted. Second, the R&R did not specifically address Jones' allegation of discrimination based upon DOCCS Directive 2614. ( See Am. Compl. ¶¶ 45-51.) That claim, however, must be dismissed because "[v]iolations of state law do not give rise to claims under 42 U.S.C. § 1983[, and, m]ore specifically, a violation of a DOCCS directive does not state a claim for a constitutional violation under § 1983." Tuitt v. Chase, No. 9:11-CV-0776, 2013 WL 877439, at *10 (N.D.N.Y. Jan. 30, 2013).

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that Magistrate Judge Christian F. Hummel's Report-Recommendation and Order (Dkt. No. 57) is ADOPTED in its entirety; and it is further

ORDERED that defendants' motion for summary judgment (Dkt. No. 53) is GRANTED; and it is further

ORDERED that Jones' Amended Complaint (Dkt. No. 7) is DISMISSED; and it is further

ORDERED that the Clerk close this case; and it is further

ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to the parties.



ROBERT JONES, Plaintiff Pro Se, XXXXXXXXXX, George Matchan Detention Center[2] East Elmhurst, NY

HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York DAVID L. COCHRAN, ESQ. Assistant Attorney General The Capitol Albany, New York XXXXX-XXXX Attorney for Defendant.


Plaintiff pro se Robert Jones ("Jones"), an inmate formerly in the custody of the New> York State Department of Correctional and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, five DOCCS employees, five Jane Does, four John Does, and DOCCS, violated his constitutional rights under the First, Eighth, and Fourteenth Amendments. Am. Compl. (Dkt. No. 7). Jones also asserts claims pursuant to Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc-1 et seq. Id . Presently pending is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. Dkt. No. 53. Jones has not opposed the motion. For the following reasons, it is recommended that defendants' motion be granted in part and denied in part.

I. Failure to Respond

Jones did not oppose defendants' motion although he was granted an extension of time to do so. See Text Order dated 1/24/2013. "Summary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default." Champion v. Artuz , 76 F.3d 483, 486 (2d Cir. 1996). Defendants provided notice in their motion papers as required by the Second Circuit and as normally done by the office of defendants' counsel. Id .; Dkt. No. 53-1. Further, the Court provided such notice by mail. Dkt. No. 55-1. Despite both the notice and the extension of time, Jones failed to respond.

"The fact that there has been no response to a summary judgment motion does not... mean that the motion is to be granted automatically." Champion , 76 F.3d at 486. Even in the absence of a response, defendants are entitled to judgment only if the material facts demonstrate their entitlement to judgment as a matter of law. Id .; FED. R. CIV. P. 56(c). "A verified complaint is to be treated as an affidavit... and therefore will be considered in determining whether material issues of fact exist...." Colon v. Coughlin , 58 F.3d 865, 872 (2d Cir. 1995) (citations omitted). The facts set forth in defendants' Rule 7.1 Statement of Material Facts (Dkt. No. 53-6) [hereinafter "Defs.' Statement"] are accepted as true as to those facts that are not disputed in Jones's verified amended complaint.[4] N.D.N.Y.L.R. 7.1(a)(3) ("The Court shall deem admitted any properly supported facts set forth in the Statement of Facts that the opposing party does not specifically controvert.") (emphasis omitted).

II. Background

On February 24, 2011, Jones was transferred from Marcy Correctional Facility ("Marcy") to Wallkill Correctional Facility ("Wallkill") for housing and vocational training. Defs.' Statement ¶ 6; Am. Compl. ¶ 26. Jones alleged that Wallkill presented architectural barriers to his alleged disabilities. Defs.' Statement ¶ 7; Am. Compl. ¶¶ 30-31. Jones was then transferred to the Shawangunk Correctional Facility ("Shawangunk"). Defs.' Statement ¶ 7; Am. Compl. ¶ 32. Upon his arrival at Shawangunk, Jones alleged that he was "quarantined" in the infirmary, which lacked adequate heating and clean drinking water from February 24, 2011 through April 2011. Defs.' Statement ¶ 8; Am. Compl. ¶¶ 34-35.

As of December 12, 2012, DOCCS's records show that Jones had filed five grievances, two of which were filed at Marcy in 2010. Defs.' Statement ¶ 16; Hale Aff. (Dkt. No. 53-3) ¶ 4; Dkt. No. 53-4. Jones is currently at the George Motchan Detention Center, which is a New York City facility. Defs.' Statement ¶ 5; Dkt. No. 53-5.

For purposes of § 1983, Jones alleged that defendants acted in their individual and official capacities. Defs.' Statement ¶ 9; Am. Compl. ¶ 21. For the ADA and Rehabilitation Act claims, Jones alleged that defendant Phillips discriminated against him generally and defendant McKay discriminated against him by denying him access to the Optics program for vocational training. Defs.' Statement ¶ 10; Am. Compl. ¶¶ 47, 49.

For the conditions of confinement[5] and wrongful segregation claims, Jones listed all defendants in the point-headings but did not make specific allegations as to any defendant. Defs.' Statement ¶¶ 11-12; Am. Compl. ¶¶ 52-60. For the medical indifference claim, Jones alleged that

[all defendants] owed a duty of care to [him] and failed in that duty, and were deliberately indifferent to [his] disability and serious medical needs by failing to provide necessary reasonable accommodations for the handicapped at Wallkill [C]orrectional [F]acility, thereby depriving [him] access to the federally funded Optics program for which he was otherwise eligible.

Defs.' Statement ¶ 13; Am. Compl. ¶ 62.

For his RLUIPA claim, Jones asserted "the defendants would not allow him to attend religious services for over thirty days, nor did they provide a Muslim chaplain to see him or conduct services." Defs.' Statement ¶ 14; Am. Compl. ¶ 67. And finally, for his First Amendment retaliation claim, Jones did not make specific allegations against any particular defendant. Defs.' Statement ¶ 15; Am. Compl. ¶¶ 70-71.

Phillips has not been served in this action. Defs.' Statement ¶ 10; Dkt. No. 11 (returning summons because Wallkill did not have a superintendent named Phillips).

III. Service of Summon and Complaint

Defendants, though modestly, argue that since Phillips has not been served with process, he should be dismissed from this action. Defs.' Mem. of Law (Dkt. No. 7) at 4. Where a defendant has not been served with process within 120 days after the complaint is filed, the Court must, on motion or sua sponte after notifying the plaintiff, dismiss the complaint without prejudice as to that defendant or "order that service be made within a specified time." FED. R. CIV. P. 4(m). If, however, the plaintiff demonstrates good cause for service failures, the Court must also extend the time to serve. Id . Additionally, the Second Circuit has held that "district courts have discretion to grant extensions even in the absence of good cause." Zapata v. City of New York , 502 F.3d 192, 196 (2d Cir. 2007).

In this case, more than one year had passed since Jones filed his amended complaint on October 25, 2011, naming Phillips a defendant. Am. Compl. Even though Jones had updated the Court with his new addresses (Dkt. Nos. 12, 24, 25) and requested and received an extension to respond to this instant motion, Jones has failed to provide the Court with any reasons, let alone good cause, for the service failure with Phillips. Jones failed to both seek assistance with the service failure and oppose defendants' motion. Thus, Phillips should be dismissed from this action.

Accordingly, defendants' motion on this ground should be granted.

IV. Discussion

Jones contends that his rights were violated under the First, Eighth, and Fourteenth Amendments, the ADA, Rehabilitation Act, and RLUIPA. Defendants move for summary judgment on the issues of mootness, exhaustion, Eleventh Amendment immunity, personal involvement, and Jones's failure to state an ADA claim.

A. Mootness

Article III, Section 2, Clause 1 of the United States Constitution limits the jurisdiction of federal courts to resolve "cases" or "controversies." U.S. CONST. art. III, § 2, cl.1. In order "[t]o sustain... jurisdiction in the present case, it is not enough that a dispute [be] very much alive when suit was filed, or when review was obtained...." Lewis v. Continental Bank Corp. , 494 U.S. 472, 477 (1990)). Thus, "throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely 0to be redressed by a favorable judicial decision.'" Spencer v. Kemna , 523 U.S. 1, 7 (1998) (quoting Lewis , 494 U.S. at 477 (1990)).

In this case, although not expressly stated, the nature of Jones's claims makes out a request for injunctive relief. See, e.g., Am. Compl. ¶ 30 (enumerating Wallkill's architectural barriers for inmates with disabilities, including inter alia the lack of handrails in the showers, wheelchair ramps, and low level sinks), ¶¶ 34-35 (alleging Shawangunk's failure to provide adequate heating and clean water when quarantined at Shawangunk). Jones expressly seeks declaratory relief. Am. Compl. at 12. Jones was previously incarcerated at Marcy, Wallkill, and Shawangunk. Jones's transfer from these correctional facilities to George Motchan moots any claims for injunctive or declaratory relief. Therefore, there is no live controversy and the Court no longer has jurisdiction over these potential claims for relief. See, e.g., Salahuddin v. Goord , 467 F.3d 263, 272 (2d Cir. 2006) (holding that all injunctive and declaratory claims were mooted by the plaintiff's transfer from a prison facility); Prins v. Coughlin , 76 F.3d 504, 506 (2d Cir. 1996) ("It is settled in this Circuit that a transfer from a prison facility moots an action for injunctive relief against the transferring facility").

Accordingly, defendants' motion on this ground should be granted.

B. Legal Standard

A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby , 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli , 113 F.3d 330, 334 (2d Cir. 1997).

The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). "Conclusory allegations or unsubstantiated speculation" may not be relied upon. Jeffreys v. City of New York , 426 F.3d 549, 554 (2d Cir. 2005) (citations omitted). The non-movant "must offer some hard evidence showing that its version of the events is not wholly fanciful." Id . (citing D'Amico v. City of New York , 132 F.3d 145, 149 (2d Cir. 1998)) (internal quotation marks omitted). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs. 22 F.3d 1219 , 1223-24 (2d Cir. 1994); Graham v. Lewinski , 848 F.2d 342, 344 (2d Cir. 1988).

When, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has stated,

[t]here are many cases in which we have said that a pro se litigant is entitled to "special solicitude, "... that a pro se litigant's submissions must be construed "liberally, "... and that such submissions must be read to raise the strongest arguments that they "suggest, ".... At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not "consistent" with the pro se litigant's allegations, ... or arguments that the submissions themselves do not "suggest, "... that we should not "excuse frivolous or vexatious filings by pro se litigants, "... and that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law...."

Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant #1 , 537 F.3d 185, 191-92 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.'" (citations omitted)). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion; the requirement is that there be no genuine issue of material fact. Anderson , 477 U.S. at 247-48.

C. Exhaustion

Under the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a), an inmate must exhaust all administrative remedies prior to bringing any suits challenging prison conditions, including federal civil rights cases. Porter v. Nussle , 534 U.S. 516, 524 (2002); see also Woodford v. Ngo , 548 U.S. 81, 83 (2006). This exhaustion requirement applies to all prison condition claims. Porter , 534 U.S. at 532. "[A]ny deprivation that does not affect the fact or duration of a prisoner's overall confinement is necessarily a condition of that confinement." Jenkins v. Haubert , 179 F.3d 19, 28 (2d Cir. 1999). The exhaustion requirement also applies even if the administrative grievance process does not provide for all the relief requested by the inmate. Nussle , 534 U.S. at 524.

Exhaustion for an inmate in DOCCS custody is generally achieved through the Inmate Grievance Program ("IGP"). See N.Y. COMP. CODES R. & ...

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