United States District Court, S.D. New York
REPORT AND RECOMMENDATION
RONALD L. ELLIS, Magistrate Judge.
Pro se Plaintiff Keith Wallace ("Wallace"), a former prisoner at Green Haven Correctional Facility ("Green Haven"), filed the Complaint in this case on November 29, 2012. He brings the action under 42 U.S.c. § 1983, alleging retaliation in violation of the First Amendment to the United States Constitution. (Compl. ¶ 1.) Wallace also claims that his rights were violated under the Eighth Amendment, the Due Process Clause of the Fifth and Fourteenth Amendments, and Article 1, § 6 of the New York State Constitution. ( Id. at ¶ 25.) He named as Defendants Brian Fischer ("Fischer"), Commissioner of the New Yark State Department of Correctional Services ("NYS DOCS, " recently renamed the Department of Corrections and Community Supervision ("DOCCS")); William A. Lee ("Lee"), Superintendent of Green Haven; Lieutenant Melville, Hearing Officer of Green Haven ("Melville"); Sergeant Funk, Investigating Sergeant of Green Haven ("Funk"); Officer Fredericks, of Green Haven ("Fredericks"); Albert Prack, Director of Special Housing/Inmate Disciplinary Program ("Prack"); and R. Koskowski, Deputy Superintendent of Security at Green Haven ('Koskowski"). Fischer, Lee, Melville, Funk, Fredericks, and Prack (collectively, the "Defendants") were all served with Wallace's Summons and Complaint. ( See Doc. Nos. 10, 11, 13, 14, 15, 20.) Before the Court is Defendants' motion to dismiss Wallace's claims (Defs.' Mem. in Supp. of Mot. to Dismissf ("Defs.' Mem.")), and Wallace's motion for sanctions. (Notice of Mot. In Opp'n to Defs.' Rule 12(b)(1) and (6) Mot. ("Pl.'s Mem.)).
For the reasons that follow, I recommend that Defendants' motion to dismiss be GRANTED in part and DISMISSED in part. Specifically, I recommend that: (l) Defendants' motion to dismiss Wallace's retaliation claims against Fredericks and Funk be granted because Wallace failed to exhaust his administrative remedies; (2) Defendants' motion to dismiss Wallace's First Amendment claims against Lee, Fischer, and Prack be granted; (3) Wallace be granted leave to amend his procedural due process claim to indicate any "atypical and significant hardship" endured during his twelve-month confinement in the prison's special housing unit ("SHU"); (4) the claims against Fischer and Prack be dismissed for lack of personal involvement in the alleged constitutional violations; (5) Defendants' motion to dismiss Wallace's due process claim against Melville for failure to disclose the substance of the evidence against him be denied; (6) Defendants be found entitled to qualified immunity in their official capacities; (7) Fischer, Prack, and Fredericks be found entitled to qualified immunity in their individual capacities; and (8) Wallace's motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure be denied.
A. Factual History
Wallace was incarcerated at Green Haven from July 2010 through April 2011. (Compl. ¶ 1.) On July 27, 2010, Wallace wrote a letter to Superintendent Lee which he called a "formal complaint as a grievance." (Pl. Mem. Ex. A.) In it, Wallace accused Officer Fredericks of threatening him with disciplinary charges in retaliation for challenging his "racist, sadistic and inhumane conduct toward me." ( Id. ) Wallace claimed that Fredericks falsely accused him of transporting drugs into the jail and told him that "the next stabbing or cutting in G-block would be his." ( Id. ) Wallace asserted that he did not deal drugs. ( Id.
On July 31, 2010, Wallace wrote another letter to Lee alleging that, when Sergeant Funk interviewed him regarding the complaint against Fredericks, Funk said "I don't believe inmates over my officers and if you continue to file complaints you will be set up and sent to the box for a long time. This is Green Haven." ( See PI. Mem. 8.) Wallace stated that he believed Funk, Fredericks, and the Deputy Superintendent of Security were conspiring and retaliating against him. ( Id. ) He asked Lee to send the Inspector General to investigate. ( Id. )
On August 3, Wallace was placed under a seventy-two-hour investigation for cutting Elliot, an inmate in G-Block. (Compl. ¶ 12.) Wallace alleges that the investigation was retaliatory because Elliot told Funk and Fredericks that "Plaintiff did not cut him." ( Id. ) (emphasis in original).
On August 5, Funk filed an Inmate Misbehavior Report, charging Wallace with violations of Rules 100.10 (inmate shall not assault or inflict harm upon another inmate) and 113.10 (inmate shall not possess, use a weapon). ( Id. at ¶ 13.; PI. Mem. Ex. C.) The misbehavior report states:
After conducting an investigation into the attack of inmate Elliot... which included staff and inmate interview and review of medical reports, it has been determined that inmate Wallace... was the individual responsible for the attack which resulted in inmate Elliot... receiving la[c]erations to his left cheek and left for[e]arm consistent with injuries sustained from a razor-type weapon.
(PI. Mem. Ex. C.)
Wallace sent another letter to Lee on August 8, in which he stated that he received a "retaliatory and falsified Tier III Misbehavior Report." (Pl. Mem. Ex. D.) He maintained his innocence, stating he "was nowhere near inmate Elliot." ( Id. )
On August 12, Wallace's Correction Counselor Michael Lockwood ("Lockwood") wrote a letter to the Deputy Superintendent of Security, R. Koskowski. ( See Pl. Mem. Ex. E.) Lockwood wrote that Elliot asserted that Wallace "did not assault him, " but that "unnamed and unidentified" Correction Officers told Elliot to name Wallace as his assailant because they "wanted Wallace." ( Id. ) Lockwood stated that Elliot refused to testi fy at Wallace's hearing because he was being released in seven months and feared retaliation from security staff. ( Id. )
On August 16, Wallace wrote to Lee, again informing him of his innocence regarding the rule violations and misbehavior report. ( See Pl. Mem. Ex. F.) He wrote that he tiled grievances on July 27, July 31, August 8, and August 14 against Fredericks and Funk, but that he had "yet to receive a grievance number" pursuant to Directive #4040. ( Id. at 1.) Wallace wrote that the Second Circuit "recognize[s] various exceptions to the exhaustion of inmate grievance" requirements. ( Id. at 2.)
Also on August 16, Elliot completed a form titled Requested Inmate Witness Refusal to Testify in Tier II/Tier III Disciplinary Hearing ("Witness Refusal Form"). (Pl. Mem. Ex. F. at 3.) He wrote that he was refusing to testify on behalf of Wallace at the hearing because he "did not see [the] attacker and therefore cannot offer credible testimony stating it was or was not Mr. Wallace." ( Id. )
Between August 5 and August 26, Wallace was held in keeplock while a hearing officer reviewed the allegations that Wallace violated the rules. ( See Pl. Mem. Hat 1.) On August 18, Wallace wrote a letter to Commissioner Fischer explaining that Frederick and Funk had "set [him] up with the cutting of Mr. Elliot" and that he had failed to receive any response to the grievances sent to Lee. ( See Pl. Mem. Ex. Gat 1.) He asked Fischer to investigate why he was being held in keeplock and why he was required to attend a Tier III hearing. ( Id. ) Wallace also wrote that Hearing Officer Lieutenant Melville was making threats against him, stating "I don't care what Elliot said, your [sic] going down Wallace, " and "since you don't want to cooperate with me, get it on appeal." ( Id. )
On August 26, following a Tier III Disciplinary Hearing, Melville found Wallace guilty and imposed twelve months of SHU confinement with loss of privileges. (Compl. ¶ 16; Pl. Mem. Ex. Hat 1.) In the Hearing Disposition, Melville wrote that he relied on "confidential testimony from two sources, " which was "deemed credible and reliable by the hearing officer." (Pl. Mem. Ex. Hat 2.) He continued: "The [i]nformation obtained was consistent with the misbehavior report. Between confidential information and misbehavior report inmate is found guilty of charges." ( Id. ) Wallace was "not permitted to review [the] confidential testimony in order to not jeopardize the safety and security of the facility." ( Id. at 3.) Wallace appealed Melville's decision on September 8, 2010. (Pl. Mem. Ex. I.) On November 4, 2010, Wallace's hearing decision was "reviewed and affirmed" by Albert Prack, Director of Special Housing/Inmate Disciplinary Program. ( See PI. Mem. J.)
On August 29, Wallace filed an Inmate Grievance Complaint. (Mauro Decl. Ex. A.) He wrote that Funk "falsely accused" him of violating disciplinary rules, and that witness testimony supported his innocence. ( Id. at 1.) In early September, Correction Officer B. Anspach authored a brief investigative report: "this is a non-grievance issue per Dir. 4040." ( Id. at 2.) On October 5, the Inmate Grievance Resolution Committee ("IGRC") responded to Wallace: "IGRC recommends that grievant use the teir [sic] system appeal process. Note: Disciplinary issues are outside the purview of lGRC. Close and Dismiss." ( Id. at 3.)
In March 2011, Wallace filed an Article 78 Petition challenging the hearing officer's decision. ( See Compl. ¶ 19.) His petition was denied. ( Id., )
Wallace filed suit in this Court on November 29, 2012. ( See Compl.) In his Complaint he alleges that Defendants violated his First, Fifth, Eighth, and Fourteenth Amendment rights under the United States Constitution, and he seeks compensatory and punitive damages under Sections 1983, 1985, and 1986 of Title 42 of the United States Code. ( Id. at ¶ 1.) He sets forth the following claims: (1) After Wallace accused Fredericks of racial discrimination, Funk and Fredericks retaliated by filing a misbehavior report in which they falsely accused Wallace of assaulting Elliot ( id. at ¶¶ 1, 2, 10); (2) Koskowski, Lee, and Fischer failed to step in and stop the Tier III Hearing ( id. at ¶ 15); (3) Melville illegally "found [Wallace] guilty of all charges and imposed 12-months of SHU confinement" and loss of all privileges ( id. at ¶ 16); (4) Fischer and Prack "acted in concert to prevent [Wallace] from receiving a fair and impartial Tier III Appeal" and violated federal and state laws by affirming Wallace's guilty disposition ( id. at ¶¶ 15, 18); (5) Fischer, Prack, and Lee failed to adequately train and supervise Federicks, Funk, Melville, and Koskowski, "ignored evidence" that Fredericks and Funk had retaliated against him, "which amounts to cruel and unusual punishment, " and failed to protect Wallace (Compl. ¶¶ 22, 23, 24); (6) Defendants denied Wallace adequate treatment, which violated his due process rights ( id. at ¶ 20); and (7) Fischer, Prack, Lee, and Koskowski systematically created a policy, custom, and pattern which allowed Fredericks, Funk and Melville to "frame" Wallace "without fear of any sanctions." ( Id. )
On April 8, 2013, Defendants moved to dismiss all of Wallace's claims pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, asserting that: (1) Wallace failed to exhaust his administrative remedies against Frederick and Funk; (2) Wallace has failed to state a claim upon which relief can be granted; (3) Wallace has not alleged any Due Process violations; and (4) Defendants are entitled to qualified immunity. ( See Defs.' Mem. at 2.) On May 14, 2013, Wallace submitted his opposition to Defendants' motion, in which he reasserts his claims from the Complaint and additionally alleges that Defendants' counsel violated Rule 11 of the Federal Rules of Civil Procedure by obtaining a falsified declaration from Thomas Mauro. (Pl.'s Mem. at 10, 11.) On June 10, 2013, Defendants filed a Reply. (Reply Mem. of Law in Supp. of Defs.' Mot. to Dismiss ("Defs.' Reply").)
A. Standard for Dismissal Under 12(b)(6)
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a claim must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcrojt v. Iqbal, 566 U.S. 662, 678 (2009). A claim is plausible when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Accordingly, where a plaintiff has not "nudged his claims across the line from conceivable to plausible, [the] complaint must be dismissed." Id. at 570. The court must apply a "flexible plausibility standard, ' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). The court must also "construe the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). A court, however, is not bound to accept as true a legal conclusion couched as a factual allegation. Iqbal, 556 U.S. at 678. A complaint does not need detailed factual allegations, but the plaintiff is obligated to provide the grounds of his entitlement to relief, which requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Id.
Pro se complaints are held to less stringent standards, and should be read "to raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996); Daughtrey v. City of N.Y, 11 Civ. 9693 (PAE) (JCF), 2012 WL 4849137, at *2 (S.D.N.Y. June 29, 2012)). In deciding a motion to dismiss involving a pro se plaintiff, the court can look beyond the "four comers of the complaint" to all the pleadings before the court, including the plaintiffs opposition papers. Mayo v. Fed. Gov't, No. 11 Civ. 2828 (RLE), 2012 WL 4474589, at *5 (S.D.N.Y. Sept. 28, 2012), amended on reconsideration in part, No. 11 Civ. ...