United States District Court, N.D. New York
JOSEPH M. DAVIS, Plaintiff,
RUSSELL A. PERDUE et al., Defendants.
Joseph Davis, Pro Se Boston, MA, for the Plaintiff.
PAULA RYAN CONAN, Assistant U.S. Attorney, HON. RICHARD S. HARTUNIAN, United States Attorney, Syracuse, NY, for the defendants.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
Plaintiff pro se Joseph Davis commenced this action against defendants Russell A. Perdue, Deborah G. Schult, David Porter, Stephen G. Wagner, Anne Mary Carter, Jon Hensley, Robin Van Weelden, Max Thwaites, Phil Hamel, John Fehlner, Joseph L. Norwood, David Washburn, Henry J. Sadowski, Harley G. Lappin, Harrell Watts, and Kathleen Kenney, under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971), alleging constitutional violations during his incarceration at the Federal Correctional Institution at Ray Brook. (Compl. ¶ 1, Dkt. No. 1 at 7.) Davis alleges a cruel and unusual punishment claim under the Eighth Amendment, as well as violations of his Fifth and Fourteenth Amendment due process rights in that defendants failed to properly investigate his grievances. ( Id. ¶¶ 82-84, 85-87.) Davis seeks money damages and injunctive relief ordering defendants to take various steps to address his conditions of confinement. ( Id. at 33-34.)
Upon initial review of Davis' complaint and in forma pauperis application pursuant to 28 U.S.C. § 1915, the court dismissed with prejudice Davis' investigation of grievances claim,  and dismissed without prejudice his conditions of confinement claims against Washburn, Sadowski, Lappin, and Kenney for lack of personal involvement. (Dkt. No. 7 at 12-13.) Davis did not seek to amend his complaint. The remaining defendants have filed a motion to dismiss the complaint for failure to state a claim. (Dkt. No. 35.)
In a Report-Recommendation and Order (R&R) dated March 7, 2013, Magistrate Judge Therèse Wiley Dancks recommended that the motion to dismiss be granted, and the conditions of confinement claim be dismissed on the merits. (Dkt. No. 59 at 11-25, 26.) Because she dismissed the Eighth Amendment claim on the merits, Judge Dancks did not address defendants' argument regarding the failure to allege personal involvement of Hamel, Thwaites, and Perdue. ( Id. at 11 n.5; Dkt. No. 35, Attach. 2 at 15-16.) Davis has filed objections to the R&R. (Dkt. No. 70.) Additionally, defendants have filed a letter motion requesting that the court reject the portions of the R&R that recommend dismissal of the claims against Schult, Porter, Carter, Hensley, and Van Weelden in light of the Second Circuit's recent decision in Walker v. Schult, 717 F.3d 119 (2d Cir. 2013), decided after the R&R was issued. (Dkt. No. 73 at 1.) However, as to Hamel, Thwaites, and Perdue, the government continues to seek dismissal because of Davis' failure to allege personal involvement. ( Id. at 1-2.) For the reasons that follow, the portion of the R&R recommending dismissal of Perdue, Schult, Porter, Carter, Hensley, Thwaites, Hamel, and Van Weelden is rejected and defendants' motion to dismiss as against these defendants is denied.
At the time relevant to this action, Davis was incarcerated in the Federal Correctional Institution at Ray Brook. (Compl. ¶ 23.) On July 14, 2010, Davis was assigned to a six-inmate cell, where he remained while incarcerated. ( Id. ¶ 25.) Davis shared the cell with five other inmates, a space which totaled approximately 174 square feet, or twenty-nine square feet per inmate. ( Id. ¶ 27.)
Davis was assigned an upper bunk, and, because the bunks did not have ladders mounted to them, he was forced to either use a plastic chair to climb up to his bunk, which at times caused him to fall to the floor, ( id. ¶¶ 32-33), or to first step on the lower bunk to reach the upper bunk, which caused conflict between Davis and the inmate in the lower bunk, ( id. ¶ 34). Davis alleges that he attempted to report these incidents to the guards on duty, but they were not reported in the housing unit's log book. ( Id. ¶ 33.)
Davis alleges that the conditions in his housing unit were "unsafe and insecure" because at night, only one guard was assigned to oversee two housing units, and that in the event of an emergency, there may be no way to alert the guard on duty. ( Id. ¶ 35.) He further alleges that there was an inadequate level of sanitation in his living environment. ( Id. ¶ 38.) Specifically, he alleges that he had no access to cleaning supplies after 9:00 P.M., and that the provisions of cleaning supplies given to the inmates were insufficient to meet their needs. ( Id. ¶¶ 39, 41.) As a result, on several occasions Davis attempted to use the toilet in his cell, but found it to be stained with feces. ( Id. ¶ 43.)
Davis further alleges that the six-inmate cells do not have proper ventilation. ( Id. ¶ 44.) Specifically, there is no circulation, particularly when the cell door is closed, such that the six-inmate cells become substantially hotter than other cells, and become "much hotter during the summer months." ( Id. ¶¶ 44-46.) The inmates were prohibited from opening the food tray slots in the cell doors in order to provide additional ventilation, ( id. ¶ 45), and they were sent a memorandum notifying them that they would be disciplined for covering ventilation grates in an attempt to prevent excessive heating, ( id. ¶ 48). As a result of the poor ventilation and the "stifling" atmosphere it created, Davis claims that he suffered several common colds, as well as insomnia and general difficulty sleeping. ( Id. ¶ 47.) He also claims that excessive noise from other inmates and the industrial fans in the housing unit interfered with his ability to sleep. ( Id. ¶¶ 52-53.)
Davis alleges that the living conditions of the six-inmate cells afford no privacy, including when using the toilet, ( id. ¶ 49), and that these conditions have led to constant tension and occasional conflicts between the inmates who shared his cell, ( id. ¶¶ 49, 54). Additionally, he alleges that all inmates of a six-inmate cell are held responsible when one of them violates prison rules, and that he is aware of several incidents where one inmate was disciplined for the misbehavior of another. ( Id. ¶¶ 55-56.) Further, the six-inmate cells are allegedly searched more often than others, and Davis has had his personal property disturbed or confiscated by prison staff. ( Id. ¶ 57.)
Davis claims that several times over the course of his incarceration in the six-inmate cell, Ray Brook has been placed on "lockdown status, " which makes the living conditions even worse and heightens the tensions among the inmates. ( Id. ¶¶ 59-60.) For example, the inmates are given only "meager" portions of food for meals, they are restricted from bathing for sometimes days at a time, they are not allowed to access laundry facilities or clean their clothes, the temperatures rise to "unbearable levels, " and they are not given any substantial opportunities for exercise. ( Id. ...