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Herring v. Tabor

United States District Court, Second Circuit

November 20, 2013

MELVIN HERRING, Plaintiff,
v.
B. TABOR, Defendant.

Melvin Herring Pro Se Auburn, NY. FOR THE PLAINTIFF:

LAURA A. SPRAGUE, Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, Albany, NY, FOR THE DEFENDANT:

MEMORANDUM-DECISION AND ORDER

GARY L. SHARPE, Chief District Judge.

I. Introduction

Plaintiff pro se Melvin Herring commenced this action against defendants Department of Correction and Community Supervision (DOCCS), Marcy Regional Mental Health Unit (RMHU), correction officer Tabor, B., and correction sergeant Smith pursuant to 42 U.S.C. § 1983. (Compl., Dkt. No. 1.) Herring's complaint alleges violations of the First and Eighth Amendments. (Id. ) Herring seeks declaratory and injunctive relief, as well as damages. (Compl. ¶¶ 79-86.)

Tabor filed a pre-answer motion to dismiss. (Dkt. No. 18.) In a Report-Recommendation and Order (R&R) dated July 1, 2013, Magistrate Judge David E. Peebles recommended that Tabor's motion be granted, with leave to amend. (R&R at 26, Dkt. No. 22.) Both parties have filed objections. (Dkt. Nos. 23, 24.) For the reasons that follow, the R&R is adopted in its entirety.

II. Background[1]

Herring is an inmate in the custody of the New York State DOCCS. (See generally Compl.) During the relevant time period, Herring was incarcerated in the Marcy Correctional Facility. (Id. ¶ 2.) While an inmate at Marcy, Herring worked on the lawns and grounds crew with other inmates. (Id. ¶ 16.) On July 17, 2012, Herring was assigned to clean the grounds around a fenced in area of RMHU. (Id. ) After the crew had finished cleaning this area, Tabor ordered several crew members to then clean out the recreation pens at RMHU, which were littered with items such as food, paper, and clothing. (Id. ¶¶ 18, 20.) At some time prior to this order, inmates on the crew had been advised that they should not get too close to the RMHU recreation pens because RMHU inmates had a tendency to throw urine and feces out of their cell windows. (Id. ¶ 17). Herring had also indicated to Tabor that the area smelled of urine and feces. (Id. ¶ 19.) However, Tabor denied smelling feces, and ordered the inmates to begin cleaning the recreation pens. (Id. ¶¶ 19-20.)

Despite a fear of having urine or feces thrown at him and contracting a disease, Herring complied with the order. (Id. ¶¶ 20, 63.) Herring was provided with plastic gloves to use while cleaning, and, with the gloves on, Herring disposed of a shirt that had feces on it by placing the shirt in a bag. (Id. ¶¶ 22-23.) The next day, Herring filed a grievance to complain about being required to clean the recreation pens, which Tabor allegedly knew contained human waste. (Id. ¶ 25.)

III. Procedural History

Herring commenced this action by filing a complaint in November 2012. (Compl.) Following initial review of that complaint by this court, Herring's claims against Smith, DOCCS, and RMHU were dismissed, and all three were dismissed as defendants in this action, leaving only an Eighth Amendment conditions of confinement claim against Tabor. (Dkt. No. 12 at 12-13.) Tabor then moved to dismiss Herring's complaint for failure to state a claim and, alternatively, to revoke Herring's in forma pauperis status. (Dkt. No. 18.)

IV. Standard of Review

Before entering final judgment, this court reviews report and recommendation orders in cases it has referred to a magistrate judge. If a party properly objects to a specific element 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. Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, only vague or general objections are made, or a party resubmits the same papers and arguments already ...


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