United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Michael Hill ("Plaintiff"), an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brought this pro se action pursuant to 42 U.S.C. §§ 1983 and 1985 against Defendants for alleged violations of his First, Eighth, and Fourteenth Amendment rights. See Complaint ("Compl.") (Dkt #1). Currently before the Court are Plaintiff's Motions to Compel Discovery (Dkt #51) and Motion for Summary Judgment (Dkt # 26). Defendants have opposed both of Plaintiff's motions, and have cross-moved for dismissal of the Complaint (## 47, 53) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)").
II. Preliminary Matters
A. Treatment of Defendants' Cross-Motion
Plaintiff's undated and unsigned Motion for Summary Judgment (Dkt #26) was received by the Court on November 16, 2010. In it, Plaintiff requested judgment in his favor "as the record itself illustrates Defendants acted with the sort of criminally reckless mental state necessary to be found liable for each cause of action alleged in the Complaint." Dkt #26, p. 1 of 69.
On December 4, 2012, the Court (Siragusa, D.J.) issued an order stating that Plaintiff's Motion for Summary Judgment would consist of the Statement of Facts attached to his Complaint (Dkt #1), the summary judgment motion (Dkt #26), and the materials docketed as the Supplement to Motion for Summary Judgment (Dkt #40). Judge Siragusa also ordered Defendants to file and serve a response to Plaintiff's summary judgment motion and his motion to supplement the Complaint, along with any cross-motion for summary judgment, on or before January 4, 2013. Defendants sought and obtained an extension of time until January 23, 2013, to file their responsive pleadings.
In their Memorandum (Dkt #47) filed January 23, 2013, in response to Plaintiff's summary judgment motion, Defendants state that they are "mov[ing] to dismiss [Plaintiff's] causes of action for failure to state a claim upon which relief can be granted as a matter of law and as for [sic] a response to plaintiff's motion for summary judgment." Dkt #47 at 1. The legal standards cited by Defendants pertain only to Rule 12(b)(6) and Rule 12(c). See id. at 2-3. Likewise, in their Notice of Motion (Dkt #47-3), Defendants state they are moving to dismiss "pursuant to Fed.R.Civ.P. 12(b)(6) and (c), as well as such other and further relief as this Court may deem just and proper." Dkt #47-3 at 1. However, Defendants go on to state, "ATTACHED HERETO IS AN IRBY NOTICE FOR YOUR ATTENTION AND REVIEW", and they attach the form Irby notice utilized by the Attorney General's Office when moving for summary judgment against a pro se litigant. See Dkt #47-3 at 2-3 (capitals in orignal). Defendants also have submitted various documents and records (e.g., copies of grievance determinations and the transcript of the disciplinary hearing) that pertain to Plaintiff's claims. Plaintiff did not file responsive pleadings to Defendants' motion.
After reviewing the parties' submissions, the Court determines that it is proper to treat Defendants' motion to dismiss as a cross-motion for summary judgment. Given that Defendants' attached an Irby notice and various documents to their motions, the Court presumes that Defendants intended to cross-move for summary judgment. The Court finds that Plaintiff will not be prejudiced by this for several reasons: First, Plaintiff was expressly given the notice required under Second Circuit law by means of the Irby notice attached to Defendants' papers. Second, in his moving papers, Plaintiff clearly requested summary judgment based on the existing record. Given Plaintiff's wealth of experiencing litigating § 1983 actions in this Court, there is no question that he should understand the import of an Irby notice.
B. Plaintiff's Attempt to Assert New Claims
Plaintiff's experience litigating civil rights actions in federal court raises the issue of whether the Court should lessen the degree solicitude normally afforded to pro se litigants. The Second Circuit has noted that "[i]n some circumstances, such as when a particular pro se litigant is familiar with the procedural setting as a result of prior experience, " Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010), it may be "appropriate to charge [him] with knowledge of... particular requirements, " Sledge v. Kooi, 564 F.3d 105, 109 (2d Cir. 2009) (per curiam). The Court declines to impose a "general withdrawal of solicitude" here, but finds it appropriate to impose a limited withdrawal of solicitude in relation to the procedural requirements for asserting new causes of action. Specifically, Plaintiff has attempted to plead new causes of action in his motion for summary judgment. For instance, Plaintiff newly asserts that Corrections Officer Timothy Harvey ("C.O. Harvey") utilized excessive force against him. In the Complaint, however, Plaintiff did not assert an excessive force claim against C.O. Harvey, although he did include various allegations against him. The Court will not countenance Plaintiff's attempt to make an end-run around Judge Siragusa's December 4, 2012 Order (Dkt #43) denying his motion for leave to amend his Complaint. Therefore, the Court strikes all allegations in Plaintiff's summary judgment motion purporting to assert a cause of action not already pled in his Complaint.
C. Plaintiff's Motion to Compel Discovery
In his motion dated March 4, 2013 (Dkt. #51), Plaintiff asserts that he is entitled to additional discovery in the form of records and information relating to pest extermination efforts at Southport for purposes of developing his conditions of confinement claim, set forth as the fifth cause of action in the Complaint. See Compl., ¶¶ 71-77. Defendants have opposed Plaintiff's motion as untimely. See Declaration of J. Richard Benitez, Esq. (Dkt #53).
Pursuant to the Court's Rule 16(b) scheduling order (Dkt #11), the deadline for discovery was December 31, 2010. By the time Plaintiff filed his motion to compel discovery on March 4, 2013, more than three years had passed since the expiration of that deadline. To allow further discovery at this late date requires a showing of "good cause" and leave of the Court. See FED. R. CIV. P. 16(b); see also, e.g., Carnrite v. Granada Hosp. Group, 175 F.R.D. 439, 446 (W.D.N.Y. 1997). Plaintiff did not seek leave of court for the instant motion, as required by Rule 16(b). With regard to the "good cause" requirement, Plaintiff must show "that scheduling deadlines cannot be met despite [his] diligence." Carnrite, 175 F.R.D. at 446 (citing 6A Wright, Miller and Kane, FEDERAL PRACTICE AND PROCEDURE § 1522.1 at 231 (2nd ed. 1990)). Plaintiff has not attempted to excuse his late filing, and "good cause" for the more than three-year delay is patently missing from the record. Therefore, Plaintiff's motion to compel discovery is denied with prejudice.
III. Factual Background
In accordance with the rules governing the review of motions to dismiss pursuant to Rule 12(b)(6), the Court accepts the factual allegations set forth in Plaintiff's complaint as true. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006) (citation omitted). The following facts are taken from Plaintiff's Complaint (Dkt #1), which consists of a 30-page "Verified Complaint, " a 13-page "Statement of Material Facts, " and 96 pages of exhibits.
At all times relevant to the instant action, Plaintiff was an inmate in the custody of DOCCS, incarcerated at Southport Correctional Facility ("Southport"). All Defendants in this action are or were employees of DOCCS: Corrections Officer Roger Held ("C.O. Held"), Corrections Officer John Rogers ("C.O. Rogers"), Corrections Sergeant Timothy Allison ("Sgt. Allison"), C.O. Harvey, Inmate Assistant Jacqueline Mackey ("Asst. Mackey"), Hearing Officer James Esgrow ("H.O. Esgrow"), Director of Special Housing Inmate Disciplinary Hearing Program Norman Bezio ("Dir. Bezio"), Corrections Sergeant Randy Hurt ("Sgt. Hurt"), Inmate Grievance Supervisor William Abrunzo ("IGP Supr. Abrunzo"), Nurse Angie Gorg ("Nurse Gorg"), Nurse Administrator Cathy Felker ("Nurse Adminr. Felker") and Southport Superintendent David Napoli ("Supt. Napoli").
B. Plaintiff's Allegations
1. The Misbehavior Report and Deprivation of Plaintiff's Property
On April 5, 2009, Plaintiff was moved to C-Block 8-Company from C-Block 1-Company at Southport. Immediately following this transfer, he was confronted by C.O. Held, the supervisor of that housing unit. Plaintiff requested his Level 2 property from C.O. Held, who denied him access to his property until two days later on the basis that Plaintiff allegedly was a member of the "Blood" gang and because there was no porter available in the unit.
On April 14, 2009, upon Plaintiff's return from a pre-trial teleconference for one of this other federal lawsuits, C.O. Held became belligerent, stating, "[Y]ou better not be suing anyone I know." Statement ("Stmt."), ¶ 15 (Dkt #1).
On June 5, 2009, Plaintiff was transferred to Attica Correctional Facility on a writ of habeas corpus ad testificandum so that he could appear at a trial beginning on June 8, 2009. He was returned to the same unit at Southport on June 23, 2009. where C.O. Held again made threats toward him.
Shortly thereafter, a conflict on Plaintiff's housing unit arose when the inmate unit porter quit his job, and C.O. Held permitted an unpopular and problematic inmate to serve in that position. According to Plaintiff, C.O. Held's supervisors repeatedly instructed him not to permit this particular inmate out of his cell, and other inmates complained that this inmate had contaminated their food and performed inappropriate sexual acts on the unit. This new unit porter, who has not been identified here, refused to pick up certain inmates' food trays and then reported to the guards that those inmates refused to hand in their trays. The new porter was fired, and two inmates in C-Block 8-Company were moved to Level 1 housing unit under "false pretenses". Plaintiff does not identify who these inmates were, but the Court presumes, based on later statements in the Complaint, that Plaintiff was one of those adversely affected inmates.
According to Plaintiff, C.O. Held did not listen to the inmates' complaints about the unit porter, stated that "no Blood was going to run his company, " and proceeded to write a false misbehavior report against Plaintiff alleging the following disciplinary rule violations: Threats (102.10), Area Takeover (104.10), and Lead Others to Participate in Detrimental Action to Facility (104.12). Charge 104.10 eventually was stricken, however. Plaintiff also implicates Sgt. Allison in the writing of this report.
In addition to demoting Plaintiff to Level 1 status and placing him in full restraints (handcuffs, waist chain, and leg irons) during the move, Plaintiff was issued a deprivation order restricting his access to showers, exercise, cell clean-up, and haircuts. Furthermore, Sgt. Allison ordered the escorting guards to destroy Plaintiff's legal paperwork.
On July 13, 2009 at approximately 3:20 p.m., Plaintiff was escorted down B-Block 1-Company by C.O. Harvey and another guard in connection with the misbehavior report. C.O. Harvey returned ten minutes later with some of Plaintiff's Level 1 property, at which time he told Plaintiff, "I read your trial transcripts from that lawsuit and if you expose yourself on my unit I'm going to hurt you... and as for your property, you [sic] lucky you got what you [sic] getting now." Compl., ¶ 39; Stmt., ¶ 15.
To protest the false report, Plaintiff filed two grievances, forwarded complaints to Assistant Attorney General In Charge Debra A. Martin and the Commissioner of DOCCS, and spoke with Supt. Napoli during his rounds. On July 13 or 14, 2009, Supt. Napoli "treated Plaintiff as a nuisance... rolled his eyes and said Plaintiff's problem was nothing and for him to stop writing grievance complaints." Stmt., ¶ 17. On August 3, 2009, Plaintiff again addressed Supt. Napoli about his grievances concerning the unlawful destruction of his personal and legal property. Supt. Napoli replied, "[M]y officers wouldn't do that, and if they did, just file a claim... I'm tired of investigating and dealing with complaints from you... you know where you went wrong Hill, you called me Dave, that's where you went wrong." Stmt., ¶ 18. Supt. Napoli thereafter allegedly instructed C.O. Harvey to deprive Plaintiff of his shower and feed-up.
2. The Tier III Hearing
At Plaintiff's request, Asst. Mackey was selected as one of his Tier Assistants. According to Plaintiff, she refused to interview his witnesses and obtain certain documents for him, and also instructed Plaintiff to claim that another inmate made the threats and not to argue that the misbehavior report was false and retaliatory.
H.O. Esgrow, the Tier III Hearing Officer, then improperly obtained an extension to continue Plaintiff's hearing; did not allow Plaintiff to put relevant facts on the record which would have exonerated him, and improperly denied witness testimony on the basis that it was redundant. H.O. Esgrow conducted an off-the-record investigation by taking notes during the hearing, and, when confronted about it, refused to read into the record the contents of his notes. Finally, H.O. Esgrow conferred with Supt. Napoli regarding the hearing, and they "deliberately prevented Plaintiff from proving his innocence by showing the ongoing pattern of abuse" by C.O. Held and Sgt. Allison in issuing false misbehavior reports and threatening inmates. Stmt., ¶ 29.
At the conclusion of the hearing on August 17, 2009, H.O. Esgrow found Plaintiff guilty of Demonstration (104.12) and Threats (102.10), and imposed a penalty of six months in SHU starting January 27, 2010. There was a lesser penalty imposed for three months, but the Court cannot discern it because H.O. Esgrow's handwriting is illegible. On September 17, 2009, Dir. Bezio affirmed H.O. Esgrow's determination, and on September 30, 2009, he denied reconsideration. According to Plaintiff, Dir. Bezio refused to correct numerous procedural errors.
3. Unclean Cell Conditions
Plaintiff was forced to move into an unsanitary cell that had ants crawling on it, a dirty floor, and a toilet that "reeked of stale urine." Compl., ¶ 74. He was unable to clean the cell, and he complained of being sick every day. However, the nurses only claimed to have received one sick call slip from him. Id., Ex. F.
4. Interference With Grievance Procedure
IGP Supr. Abrunzo deliberately prevented Plaintiff's grievances and appeals from being processed so as to interfere with Plaintiff's efforts to ...