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Toliver v. Colvin

United States District Court, W.D. New York

March 27, 2014

JOHN C. COLVIN, Deputy Superintendent for Security, SUPERINTENDENT of FIVE POINTS CORR. FACILITY, CORRECTION OFFICER BROWN, Five Points, R. SHIELOS, Correction Sergeant Five Points, JOHN DOE, Correction Sergeant Five Points, WALAWENDER, Correction Sergeant Five Points, BRIAN FISCHER, Commissioner of New York State Dep't of Corrections and Community Supervision, and DIRECTOR OF MOVEMENT AND CONTROL/INMATE HOUSING, Albany, Defendants.

MICHEL TOLIVER, Pro Se, Romulus, New York.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, STATE OF NEW YORK, DAVID J. SLEIGHT, Assistant Attorney General, of Counsel, Attorney for Defendants, Buffalo, New York.


LESLIE G. FOSCHIO, Magistrate Judge.


This case was referred to the undersigned on May 21, 2013, by Honorable Richard J. Arcara, for all pretrial matters including report and recommendation on dispositive motions. The matter is presently before the court on Plaintiff's motions seeking a temporary restraining order (Docs. Nos. 11 and 12), respectively filed February 26 and 28, 2013, sanctions (Doc. No. 14), filed March 14, 2013, an injunction (Doc. No. 17), filed April 12, 2013, leave to file a further amended complaint (Doc. No. 22), filed June 7, 2013, and to compel Defendants to answer the amended complaint (Doc. No. 23), filed June 7, 2013.[1]


Plaintiff Michel Toliver ("Plaintiff" or "Toliver"), proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. § 1983 on March 21, 2012, while incarcerated in Shawangunk Correctional Facility ("Shawangunk") in Wallkill, New York, alleging Defendants, all employees of New York State Department of Corrections and Community Supervision ("DOCCS"), violated his rights under the Eighth and Fourteenth Amendments by failing to protect him from repeated assaults while housed in Five Points Correctional Facility ("Five Points" or "the correctional facility"), in Romulus, New York. Plaintiff particularly alleges that despite being an "overt homosexual" whose "lifestyle" other inmates "cannot handle, " Defendants have refused Plaintiff's repeated requests to be placed in voluntary protective custody, and instead have maintained Plaintiff's placement in the general prison population at Five Points, a facility that is fully "double-bunked" requiring two inmates in each cell. Plaintiff alleges that as a result of the "double-bunked" cells, he has been forced to share a cell with other inmates who are either homophobic and assault Plaintiff, or are also homosexual and sexually assault Plaintiff. On April 26, 2012, Plaintiff filed exhibits to supplement the Complaint (Doc. No. 5) ("Plaintiff's Exh(s). ___"). On December 17, 2012, Plaintiff filed an amended Complaint (Doc. No. 7) ("Amended Complaint"), naming as Defendants DOCCS Commissioner Brian Fischer ("Fischer"), Five Points Superintendent ("Superintendent"), Deputy Superintendent for Security John C. Colvin ("Colvin"), Corrections Officer Brown ("Brown"), Corrections Sergeants R. Shielos ("Shielos"), Walawender ("Walawender"), and John Doe ("John Doe"), and Director of Movement and Control/Inmate Housing (Albany) ("DOCCS Housing Director") ("Defendants").

Plaintiff filed motions seeking temporary restraining orders ("TRO"), on February 26, 2013 (Doc. No. 11) ("First TRO Motion"), and February 28, 2013 (Doc. No. 12) ("Second TRO Motion"). On March 14, 2013, Plaintiff filed a Motion seeking monetary sanctions against Defendants for alleged acts taken against Plaintiff in retaliation for the instant action (Doc. No. 14) ("Sanctions Motion"). On April 12, 2013, Plaintiff filed a motion seeking a permanent injunction, removing Plaintiff from Five Points so as to avoid further retaliation and physical abuse as alleged by Plaintiff (Doc. No. 17) ("Injunction Motion"). On June 7, 2013, Plaintiff filed motions seeking leave to file a further amended complaint (Doc. No. 22) ("Motion to Amend"), and to compel Defendants Director of Housing and Brown to file their answers (Doc. No. 23) ("Motion to Compel Answers"). On June 28, 2013, Defendants filed in response to all six of Plaintiff's pending motions, the Declaration of Assistant Attorney General David J. Sleight (Doc. No. 28) ("Sleight Declaration"). On September 3, 2013, Plaintiff filed the Declaration and Opposition to Defendants' Answer to Plaintiff's TRO, Injunction, Sanctions Motion, in further support of his First TRO Motion, Second TRO Motion, Injunction Motion, Motion to Compel, Sanctions Motion, and Motion to Amend (Doc. No. 30) ("Plaintiff's Reply"). Oral Argument was deemed unnecessary.

Based on the following, the First TRO Motion should be DENIED; the Second TRO Motion should be GRANTED; the Injunction Motion should be DENIED; the Motion for sanctions is DENIED; the Motion to Amend is GRANTED; and the Motion to Compel is DISMISSED as moot in part and DENIED in part.


On October 28, 2010, Plaintiff Michel Toliver ("Plaintiff" or "Toliver"), was transferred from Elmira Correctional Facility ("Elmira") to Five Points Correctional Facility ("Five Points" or "the correctional facility"), a "double-bunked" correctional facility, with all inmates within the general prison population assigned two to a cell, i.e., "double-bunked." Pursuant to DOCCS Regulation § 1701.5 ("§ 1701.5"), DOCCS Deputy Superintendent of Security, in fulfilling his responsibility for selecting inmates for double-cell housing, is to conduct a risk assessment to determine each inmate's eligibility, suitability, and compatibility for double-cell housing. 7 NYCRR § 1701.5(a). Generally excluded from consideration for double-cell housing are "victim prone" inmates, defined as "[i]nmates currently in voluntary protective custody' or involuntary protective custody' status..." as well as "any inmate with a pattern of being victimized by other inmates resulting in serious physical injury or sexual abuse." 7 NYCRR § 1701.5(c)(4)(i).

At Five Points, Plaintiff, who is homosexual and uses either a walker or a wheelchair to ambulate, initially was assigned to share cell number 30 ("cell 30"), with "Webster" who Plaintiff maintains was a member of the "Bloods" gang. Webster allegedly informed Plaintiff that Plaintiff could not stay in cell 30 with Webster. Plaintiff sought assistance from a passing housing unit officer who brought Plaintiff to the DOCCS sergeant on duty whom Plaintiff notified of Webster's threats. The sergeant allegedly responded by advising that Plaintiff would remain assigned to share cell 30 with Webster regardless of Plaintiff's complaints, and then returning Plaintiff to cell 30. Upon Plaintiff's return to cell 30, Webster was not there but was attending his workprogram. When Webster returned, however, he threatened to use physical force against Plaintiff, and slapped Plaintiff's face, after which Plaintiff promised to leave the cell, and stood by the cell's door hoping to make contact with any passing DOCCS officer who might be able to render assistance. Plaintiff maintains he was unable to sleep while housed with Webster out of fear that Webster would harm him. Webster allegedly threw soup and cold water at Plaintiff, and made Plaintiff wash Webster's socks, underwear, sweatshirt, and shorts, and scrub the cell's toilet, sink, and shower.

The next morning, October 29, 2010, Webster allegedly threatened to physically assault Plaintiff if Plaintiff were still in cell 30 when Webster returned from breakfast. While Webster was at breakfast, Plaintiff begged and pleaded with passing DOCCS officers for protection from Webster, but his pleas were ignored and, upon returning from breakfast, Webster, as threatened, punched Plaintiff in the face, knocking Plaintiff to the floor, at which point Plaintiff was finally removed from cell 30 and permitted to speak with another sergeant who permitted Plaintiff to apply for voluntary protective custody. Later that day, Plaintiff was interviewed by Defendant Shielos in connection with Plaintiff's request to be placed in voluntary protective custody, submitted on a DOCCS Voluntary Protective Custody Status Consideration Form ("PC Form").[3] The relevant prison regulation provides that an inmate may be admitted into "voluntary protective custody" if the inmate "lacks the ability to live in the general facility community and [ ] may for good cause be restricted from communication with the general inmate population and [ ] voluntarily accepts admission into protective custody status." 7 N.Y. Code Rules & Regs. ("NYCRR") § 330.2(a).[4] Once admitted into voluntary protective custody, an inmate is to be "evaluated and recommended for transfer to facilities where they may be appropriately programmed in general population." 7 NYCRR § 330.3. Plaintiff explained to Shielos that as an "overt homosexual, " PC Form, who uses a walker and sometimes a wheelchair, he felt vulnerable in the general prison population and unable to defend himself should he be attacked. On November 15, 2010, Defendant Colvin, as Five Points Deputy Superintendent of Security, approved the request, thereby assigning Plaintiff protective custody status. Id.

After several weeks in voluntary protective custody, Plaintiff was, without any warning, relocated to another cell, cell number 50 ("cell 50"), where he was doublebunked with "Payne, " another homosexual inmate who had been making sexual advances toward Plaintiff, who did not share Payne's affections. Plaintiff complained to Defendant Brown that he feared being harmed by Payne, but Brown allegedly responded Plaintiff would have to find a way to get along with Payne. A couple of days later, Payne again made sexual advances toward Plaintiff, who again asked Brown to reassign Plaintiff to a different cell and requested to speak with a sergeant, but Plaintiff's requests were ignored. On Thanksgiving Day, 2010, Plaintiff awoke to find Payne had committed an unhygienic sexual act on Plaintiff and, after showing the cell unit officer what had happened, Plaintiff was taken to the area sergeant who provided Plaintiff with a towel and rubbing alcohol to wash. The sergeant, however, informed Plaintiff he was not able to remove Plaintiff from the cell. The sergeant then gave Plaintiff a choice of either returning to cell 50 with Payne, or being assessed a disciplinary violation for refusing to double-bunk, and being placed in the "box" where Plaintiff would still be double-bunked, possibly with "someone who hates faggots as opposed to wanting to fuck you." Amended Complaint at 38. Plaintiff then agreed to return to cell 50 with Payne. Upon reentering cell 50, Plaintiff observed that his property bags, which were still packed, were open, and that Payne had urinated on Plaintiff's clothes, and left Plaintiff a love letter and a "sweetheart handmade greeting card." Amended Complaint at 39.

The next day, Plaintiff stopped the nurse who was passing cell 50 and requested to speak with psychiatrist Dr. York ("Dr. York"). The nurse arranged for Plaintiff to speak with Dr. York. Plaintiff told Dr. York everything that had happened at Five Points, and Dr. York arranged for Plaintiff to be removed from cell 50. Plaintiff, however, was next assigned to cell number 47 ("cell 47"), with inmate Ingraham ("Ingraham"), who was both a member of the Bloods gang and "an overt homosexual." Amended Complaint at 40. Plaintiff alleges that every day Ingraham took Plaintiff's breakfast and lunch food, allowing Plaintiff to eat only dinner, forced Plaintiff to wash Ingraham's clothes and sheets, would not allow Plaintiff to use the bathroom, turn on the lights, or make any noise when Ingraham was present in the cell, and read Plaintiff's mail. Plaintiff maintains he filed several complaints about the abuse he received from Ingraham, but nothing was done about the situation until Ingraham filed a complaint advising Plaintiff could only remain in cell 47 if DOCCS paid Ingraham; otherwise, Plaintiff would "become a poster victim.'" Amended Complaint at 41. Several days after Ingraham's complaint, Ingraham was removed from cell 47.

After several more days, another inmate, "Desenoyers, " was moved into cell 47 with Plaintiff. According to Plaintiff, Desenoyers was "a white male member of the Alien Nation' bald head homophobic, " Amended Complaint at 43, who stated he intended to kill Plaintiff. Plaintiff maintains he wrote DOCS administration 20 letters about Desenoyers, but nothing was done as Desenoyers repeatedly assaulted Plaintiff in cell 47, promising to "feed [Plaintiff] to the pigeons, " flicking cigarette ashes and butts onto Plaintiff's bed sheets and spitting on Plaintiff, and at one point throwing feces on Plaintiff as he slept. Id. at 42. The abuse continued until one afternoon when Desenoyers threatened that if Plaintiff was not removed from the cell Desenoyers would "stab [Plaintiff's] ass." Id. Desenoyers' actions so frightened Plaintiff that Plaintiff stayed awake the entire night, afraid that otherwise he would be attacked in his sleep. When Desenoyers realized the correctional facility's housing unit officers were not going to move Plaintiff, Desenoyers wrote a letter to Five Points superintendent advising he was a "skin head" member of the "Alien Nation" and that Desenoyers was waiting only 24 hours for either Plaintiff or Desenoyers to be removed from cell 47, or Desenoyers would kill Plaintiff "in the name of his Nation." Complaint at 43. Desenoyers was removed from cell 47 later that day.

A few days later another, unidentified inmate was placed in cell 47 with Plaintiff. Although such inmate remained in cell 47 for only a few hours, during his brief stay, the inmate assaulted Plaintiff, punching and kicking him while a DOCCS officer watched, but did not intervene to stop the assault. Plaintiff maintains this incident occurred shortly after Plaintiff received an answer, dated January 25, 2011, to another complaint Plaintiff filed against Colvin.

When Plaintiff commenced the instant action on March 2, 2012, he had been transferred from Five Points to Shawangunk Correctional Facility in Wallkill, New York. On some unspecified date between the commencement of this action and the filing of the Amended Complaint on December 17, 2012, Plaintiff had been transferred to Upstate Correctional Facility in Malone, New York. On January 30, 2012, however, Plaintiff was transferred back to Five Points, where Plaintiff was initially placed in protective custody for one week, but was then reassigned to the general prison population in cell number 49 ("cell 49"), and further requests for voluntary protective custody placement were denied.

Early in the morning of February 17, 2013, Plaintiff, complaining of chest pains, was escorted to the infirmary where he was treated with nitroglycerin before being transported, against his will, to Cayuga Medical Center ("CMC"). Upon returning from CMC, Plaintiff was met by several DOCCS officers from the Five Points' special housing unit ("SHU"), and taken in handcuffs and placed in SHU. Plaintiff maintains he was "set up" in that while being treated at CMC, Defendants conspired to retaliate against Plaintiff for commencing the instant action, by placing a sharpened toothbrush and a can of tobacco in Plaintiff's cell, then issuing an Inmate Misbehavior Report ("Inmate Misbehavior Report"), charging Plaintiff with possession of a weapon and contraband. According to Plaintiff, the discovery of the sharpened toothbrush and tobacco and subsequent disciplinary charges would negatively affect Plaintiff's parole release hearing that was scheduled two weeks later, and could result in Plaintiff's incarceration for an additional three years. Plaintiff further maintains the altered toothbrush allegedly discovered in his cell was purple, whereas Plaintiff's toothbrush was pink, and Plaintiff has never smoked or used tobacco. At the related Tier III disciplinary hearing, Plaintiff was found guilty by DOCCS Deputy Jones ("Jones" of possession of a weapon and an altered item, for which Jones imposed a sentence of six months loss of recommended good time, six months in SHU, and one year loss of phone, recreation, packages, and commissary privileges.[5] Plaintiff maintains that because a weapons possession prison infraction is considered a violent charge, the guilty finding will almost certainly result in the denial of parole whereas Plaintiff, previous to the February 17, 2013 discovery of the altered toothbrush and tobacco, had never faced such a charge nor lost a single day of good time for any reason. Although it is not clearly stated in the record whether Plaintiff was, in fact, denied release on parole because of the guilty disposition on the Inmate Misbehavior Report, that Plaintiff remains incarcerated strongly suggests parole was, in fact, denied.


Plaintiff has six motions pending before the court. Plaintiff's First TRO Motion seeks a temporary restraining order "against any and all adverse actions" resulting from the disciplinary charge pertaining to the altered toothbrush discovered in cell 49, including any negative effect on Plaintiff's parole board hearings. Plaintiff's First TRO Motion at 2. By his Second TRO Motion, Plaintiff seeks a temporary restraining order removing Plaintiff from Five Points, expunging the allegedly false disciplinary charges from his record, placing Plaintiff in protected custody, and ordering Defendants to cease all forms of retaliation against Plaintiff. Plaintiff's Second TRO at 7. Plaintiff's Injunction Motion seeks a court order directing Plaintiff's removal from Five Points to prevent Plaintiff from suffering further retaliation and physical abuse by Defendants and other inmates. Injunction Motion at 3. In his Sanctions Motion, Plaintiff seeks monetary sanctions against Defendants for each day Plaintiff is housed in SHU as a result of alleged false prison disciplinary charges lodged to retaliate against Plaintiff for commencing the instant action, and a court order directing Plaintiff's immediate release from SH U.Sanctions Motion at 5-6. Plaintiff's Motion to Amend seeks leave to further amend the Amended Complaint to add new defendants and to ...

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