David Read, Pro Se, 10-A-5909, Collins Correctional Facility Collins, NY, for the Plaintiff.
ROGER W. KINSEY, Assistant Attorney General. ERIC T. SCHNEIDERMAN, New York State Attorney General, The Capitol, Albany, NY, for The Defendants.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
Plaintiff pro se David Read commenced this action against defendants Dawn M. Calabrese, M.D. Kinderman, and Marcy Correctional Facility pursuant to 42 U.S.C. § 1983. (Am. Compl., Dkt. No. 39.) Affording Read the special solicitude to which he is entitled as a pro se plaintiff, Read's amended complaint arguably alleges violations of Fourteenth Amendment procedural due process, unlawful retaliation, and a failure by defendants to properly investigate his grievances. ( Id.; Dkt. No. 42, Attach. 1.) Read appears to seek declaratory relief to have the disciplinary action against him expunged from his record. (Am. Compl. at 2.)
Following Read's amended complaint, defendants moved to dismiss. (Dkt. No. 40). In a Report-Recommendation and Order (R&R) dated August 29, 2013, Magistrate Judge David E. Peebles recommended that defendants' motion be granted in part and denied in part. (Dkt. No. 51.) For the reasons that follow, the R&R is adopted in its entirety.
Read is an inmate in the custody of the New York State Department of Corrections and Community Supervision (DOCCS). ( See generally Am. Compl.) During the relevant time period, Read was incarcerated in the Marcy Correctional Facility ("Marcy"). ( Id. ) His claims in this case stem from his attempts to add his wife to his list of contacts while he was incarcerated. ( Id. ) On January 25, 2011, Read was issued a written notice by Calabrese, a corrections counselor at Marcy, notifying him that his wife, Michelle Read, had been placed on a negative correspondence/telephone list, meaning Read was prohibited from contacting her while incarcerated. ( Id. at 3, 22.) Read was prohibited from corresponding with his wife because she was the victim of the crime for which Read was imprisoned, and an order of protection for her benefit was in place. ( Id. at 21, 22, 24.) The notice from Calabrese also informed Read that he would be subject to disciplinary action if he attempted to contact or correspond with his wife by mail or telephone. ( Id. at 22.)
At some point after receiving that notice, between January 25 and January 31, Read filed a grievance against Calabrese as a result of his wife being placed on his negative correspondence list. ( Id. at 3.) On July 31, Calabrese sent Read another notice stating that a temporary order of protection was issued for Read's wife on July 7, 2010, which expired on January 5, 2011, but that the Rockland County Sheriff's Department's records indicated an order of protection from the Haverstraw Court that did not expire until March 22, 2011. ( Id. at 21.) Consequently, Michelle Read's numbers were removed from Read's contact list, Read was prohibited from contacting her, and he was advised that in order to reinstate his wife to his contact list, he could write to Rockland County Court, Haverstraw Court, and Suffern Village Court to verify that no active order of protection existed. ( Id. )
On February 1, 2011, Read received confirmation from the Town of Haverstraw Justice Court that no open order of protection existed against him. ( Id. at 23.) When Read then again requested that his wife be restored to his contact list, ( id. at 4), he was informed by Kinderman that his request was denied because the Rockland County Sheriff's Office had still indicated that an active order of protection did exist, ( id. at 24). After this denial, Read sent a letter to Kinderman, on which he wrote the phone numbers and addresses of his wife and his mother-in-law, requesting that they be added to his contact list. ( Id. at 5.) Following this letter, Calabrese filed a misbehavior report alleging that Read violated a direct order, provided false information, and violated Marcy's internal phone programming procedures. ( Id. ) Read was subsequently disciplined and sentenced to confinement in Marcy's special housing unit (SHU) for six months. (Dkt. No. 42, Attach. 1 at 3.)
III. Procedural History
Read commenced this action by filing a complaint in April 2011. (Compl.) Following initial review of that complaint by this court, Read's false misbehavior claim against Calabrese was dismissed, and Read was directed to provide a waiver pursuant to Peralta v. Vasquez, 467 F.3d 98 (2d Cir. 2006), cert. denied sub nom., Jones v. Peralta, 551 U.S. 1145 (2007), relinquishing any claims affecting the length of his confinement. (Dkt. No. 13.) Read subsequently provided this Peralta waiver, (Dkt. No. 15), and the court thus dismissed all of Read's claims affecting the duration of his confinement, (Dkt. No. 20).
Defendants then made a motion to dismiss Read's complaint on numerous grounds, (Dkt. No. 30), and on August 2, 2012, that motion was granted, with leave to amend the complaint, (Dkt. No. 37). On August 29, 2012, Read filed an amended complaint. (Am. Compl.)
Defendants have again moved to dismiss Read's amended complaint on various grounds. (Dkt. No. 40.) On August 29, 2013, Judge Peebles issued an R&R recommending dismissal of the claims for damages against Marcy Correctional Facility and the individual defendants in their official capacities, dismissal of Read's failure to investigate claim, and dismissal of the claims against all defendants to the extent that Read seeks compensatory damages. (R&R at 37-38.) However, as to Read's Fourteenth Amendment due process and First Amendment retaliation claims, Judge Peebles recommended that those claims survive and that defendants be directed to respond to the amended complaint to the extent it asserts those claims. ( Id. at 38.) Defendants timely filed objections to the R&R, ...