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Washington v. Afify

United States District Court, W.D. New York

September 3, 2013

CHAPLAIN M. AFIFY, et al., Defendants

Page 533

Anthony Washington, Plaintiff, Pro se, Binghamton, NY.

For Chaplain M. Afify, Superintendent David Napoli, J. Colvin, Deputy Superintendent, K. McCarthy, Correctional Counselor, Sergeant B. Curren, Sergeant Sepiol, Sergeant Post, Correctional Officer S. Evertts, Correctional Officer S. Waters, Correctional Officer R. Deming, Correctional Officer W. Faucett, Correctional Officer W. Hollenbeck, Correctional Officer J. K. Moss, Correctional Officer Jayne, Correctional Officer Delaney, all are being sued individually and in their official capacities, Defendants: Hillel David Deutsch, LEAD ATTORNEY, NYS Attorney General's Office, Department of Law, Rochester, NY.


Page 534


DAVID G. LARIMER, United States District Judge.

Anthony Washington, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, who was formerly an inmate in the custody of the New York State Department of Correctional Services (" DOCS" ), has sued sixteen defendants, all of whom were, at all relevant times, DOCS employees at Southport Correctional Facility, where plaintiff was confined at the time of the events giving rise to this lawsuit.[1] Defendants have moved to dismiss the complaint Rule 12(b)(6) of the Federal Rules of Civil Procedure.


Plaintiff alleges a wide variety of claims arising out of incidents over a period of several months in 2008. He has sued defendants identified in the complaint as Chaplain M. Afify, Superintendent David Napoli, Deputy Superintendent J. Colvin, Correctional Counselor K. McCarthy, Lieutenant Donahue, Sergeant B. Curren, Sergeant Sepiol, Sergeant Post, and Correctional Officers S. Evertts, S. Waters, R. Deming, W. Faucett, W. Hollenbeck, J. K. Moss, Jayne, and Delaney.

Plaintiff's claims and allegations can be broken down into several categories, a summary of which will suffice here, although further details of the claims will be discussed as necessary below. First, plaintiff alleges that several defendants violated his Eighth Amendment right to be free from cruel and unusual punishment, by ordering plaintiff to clean up human feces without giving him the proper equipment to enable him to do so safely. He also asserts an Eighth Amendment claim against defendant Jayne for kicking plaintiff during a strip search.

Plaintiff also alleges that his right to the free exercise of his religion under the First Amendment to the United States Constitution has been violated in a number of respects. He alleges that defendants have, in various ways, either prevented or hindered him from practicing his Muslim faith, and that they have punished him for doing so by insisting that he work in the mess hall as a condition of his receiving meals that accorded with the requirements of his Muslim faith.

Plaintiff further asserts equal protection claims against most of the defendants, alleging that in committing these violations of his rights, defendants singled him out from among the other inmates. He has also alleged that defendants retaliated against him for his filing of grievances with respect to some of these events. Plaintiff also brings claims against some defendants based on allegations of due process violations, and based on a theory of supervisory liability for their failure to remedy all these alleged violations.


I. Eighth Amendment Claims

Plaintiff's claims under the Eighth Amendment mostly arise from his allegations that he was ordered to clean up feces without having received proper training and supplies.

Forcing a prisoner to come into contact with human waste can give rise to an Eighth Amendment claim. See, e.g., Gaston v. Coughlin, 249 F.3d 156, 166 (2d Cir. 2001) (" We are unwilling to adopt as a matter of law the principle that it is not

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cruel and unusual punishment for prison officials knowingly to allow an [inmate's living] area to remain filled with sewage and excrement for days on end" ).

In the case at bar, however, plaintiff apparently never did clean the feces as he was ordered to. Apparently there were two separate incidents in which defendants ordered plaintiff to clean feces, on March 14, 2008 and on August 16, 2008. Plaintiff alleges that on both occasions, he refused to comply with those orders because he had not been given proper cleaning equipment. See Complaint ¶ ¶ 31, 55. Plaintiff alleges that he was retaliated against for those refusals, and those allegations are addressed later in this Decision and Order, but it is plain from plaintiff's own allegations that he never actually suffered any cognizable injury--not even a serious risk of harm--that would support an Eighth Amendment claim. See Hall v. New York, 476 Fed.Appx. 474, 2012 WL 1003765, at *2 n.1 (2d Cir. 2012) (" the fact that Hall was never actually injured ... is ... highly relevant to the Eighth Amendment analysis" ). See also Richmond v. Settles, 450 Fed.Appx. 448, 453 (6th Cir. 2011) (prisoner must " demonstrate actual physical injury to recover for violations of his Eighth Amendment rights" ) (citing 42 U.S.C. § 1997e(e)).

There is some authority that exposing a prisoner to a substantial risk of imminent, serious harm to his health or safety can support an Eighth Amendment claim, even in the absence of any actual physical harm. See, e.g., Smith v. Peters, 631 F.3d 418, 421 (7th Cir.2011) (stating that " [p]rison officials who recklessly expose a prisoner to a substantial risk of a serious physical injury violate his Eighth Amendment rights," but noting that certain remedies are barred by 42 U.S.C. § 1997e(e)); Harris v. Matthews, 417 Fed.Appx. 758, 763 (10th Cir. 2011) (" While an idle threat of impending physical harm that is not carried out will not suffice to state an Eighth Amendment claim, an imminent threat of serious harm, even though injury never actually occurs, will suffice" ) (quoting Purkey v. Green, 28 Fed.Appx. 736, 745 (10th Cir. 2001)).

In the case at bar, however, things never reached that point. Plaintiff was directed to clean an area that had been contaminated with feces, and he refused. From the allegations of the complaint, plaintiff never even came close to actually being directly exposed to any noxious or harmful substances. See Wesolowski v. Kamas, 590 F.Supp.2d 431, 434 (W.D.N.Y. 2008) (plaintiff's allegations that he was not given adequate supplies to clean his cell, that his cell was not adequately cleaned after toilet overflowed, and similar allegations, failed to state Eighth Amendment claim, as they " represent[ed] minor inconveniences of prison life which 'are part of the penalty that criminal offenders pay for their offenses against society'" ) (quoting Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985) (additional internal quotes omitted), aff'd, 409 Fed.Appx. 476 (2d Cir. 2011).

Plaintiff does not seek injunctive or declaratory relief (nor do his allegations supply any basis for such relief), and although there is authority that punitive damages may be recoverable even absent actual physical injury, see Smith, 631 F.3d at 421, the threatened harm here was too remote to support such an award. See Reynolds v. Barrett, 741 F.Supp.2d 416, 446 (W.D.N.Y. 2010) (" There is no allegation, much less evidence, here that plaintiffs sustained any physical injury as a result of the events giving rise to their claims" ); Abney v. Jopp, 655 F.Supp.2d 231, 233 (W.D.N.Y. 2009) (recognizing that " [s]ection 1997e(e) does not limit the availability of nominal damages for the violation of a constitutional right or of punitive damages," but stating that " [a]t the very least,

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a plaintiff must show that the defendant's actions gave rise to an excessive risk to the inmate's safety" ) (internal quote omitted).

Plaintiff's complaint contains several other allegations that could be construed as asserting Eighth Amendment claims, but they fail to support such a claim. He alleges, for example, that on one occasion, defendant Hollenbeck " threw a punch at [plaintiff's] face," Complaint ¶ 7, but there is no indication that Hollenbeck did hit plaintiff, and it appears that this amounted to no more than a threatened use of force. See Felder v. Filion, 368 Fed.Appx. 253, 256 (2d Cir. 2010) (allegation that correction officer threatened inmate plaintiff was not a sufficient basis for a claim of Eighth Amendment violation, because plaintiff did not present evidence of any injury resulting from those threats); Justice v. McGovern, No. 11--CV--5076, 2012 WL 2155275, at *3 (E.D.N.Y. June 12, 2012) (" Courts in the Second Circuit have consistently held that mere threats ... without any injury or damage, are not actionable under Section 1983" ) (internal alterations and quotation marks omitted).

Plaintiff also alleges that during a strip search, defendant Jayne " kicked [him] after telling [plaintiff] to bend over and spread [his] butt cheeks." Complaint ¶ 90. Plaintiff does not allege that the kick was particularly forceful or that it caused him any pain or injury, and this de minimis use of force is not enough to support an Eighth Amendment claim. See Bhuiyan v. Wright, No. 06-CV-409, 2011 WL 1870235, at *8 (N.D.N.Y. May 13, 2011); Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460, 471 (S.D.N.Y. 1998).

II. Religion Claims

A. Cell Assignment

Plaintiff alleges that his ability to practice his religion was burdened in several ways. He alleges that in April and August 2008, respectively, he was transferred to a cell, and that another inmate was transferred to his cell, as a result of which he was forced to be exposed to pornographic images (presumably displayed by his cellmate), as well as to television programs and music, much of which contained " all kinds of profanity and sexually explicit content ... ." Complaint ΒΆ 20. Plaintiff alleges that these " distractions" prevented him from ...

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