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Tolliver v. Malin

United States District Court, S.D. New York

April 4, 2014



KEVIN NATHANIEL FOX, Magistrate Judge.

The plaintiff, proceeding pro se, commenced this action pursuant to 42 U.S.C. ยง 1983, alleging violations of his constitutional rights arising out of his fiancee's September 11, 2011 visit to him at New York's Sullivan Correctional Facility and the September 2011 related disciplinary hearing. On March 18, 2013, the assigned district judge adopted the Court's Report and Recommendation and dismissed the following claims: (1) "Plaintiff's official capacity claims for damages"; (2) "claims based on the issuance of an allegedly false misbehavior report"; (3) "retaliation claims against Defendant C.O. J. Skinner and D.S.A. Lynn Lilley"; and (4) "all claims against Commissioner Brian Fischer and Director of S.H.U. Albert Prack." The remaining claims in this action allege: (a) procedural due process violations, in connection with the plaintiff's 2011 hearing concerning the September 11, 2011 incident; (b) retaliation, against D.S.P.L. Malin; and (c) due process violations, based on contact-visit restrictions. Before the Court is the plaintiff's motion for leave to amend the complaint and an extension of time to complete service, "pursuant to Rules 15(a) and 6(b)(1)(A) of the Federal Rules of Civil Procedure." The defendants oppose the motion.

Plaintiff's Contentions

The plaintiff's proposed claims are against the following new defendants: (1) "Lt. T. Levac, " a "hearing officer" at New York's Five Points Correctional Facility; (2) "D.S.S. R. Coveny, " a "review" officer at New York's Five Points Correctional Facility; and (3) Albert Prack, "Director, Special Housing/Inmate Disciplinary Program, " New York State Department of Corrections and Community Supervision, in Albany. The plaintiff contends that "[t]he three (3) defendants plaintiff wants to make part of the complaint, violated plaintiff's Due Process and Constitutional Rights, " and the violations alleged were "done under the continuing violation doctrine." The plaintiff asserts the following in his proposed amended complaint:

On 5/16/2013, I was called before L.t. T. Levac, for a Re-hearing. It was during this Re-hearing that this said officer violates plaintiff's due process and constitutional rights. See, plaintiff's complaint-grievance and appeal against this said officer attached hereto as Exhibit-A. D.S.S. R. Coveny, was order[ed] to conduct a discretionary review of the said Re-hearing of Lt. Levac, and all the violations that was done, D.S.S. R. Coveny chose to turn a blind eye to all violation[s] plaintiff alleged and denied plaintiff's discretionary request. See, plaintiff's discretionary review request and D.S.S. R. Coveny decision attached hereto as Exhibit-B. On 7/17/13, plaintiff appeal[ed] the violations that was [sic] done to him at the Rehearing to Director Albert Prack, in Albany, and this Director chose to turn a blind eye and denies plaintiff's appeal. See, plaintiff's appeal and Director Albert Prack decision attached hereto as Exhibit-C. All exhibits attached herein as plaintiff's complaint against all defendants.

The plaintiff seeks damages and that the charges against him be dismissed and removed from his institutional records.

Exhibit A to the Proposed Amended Complaint

Exhibit A to the proposed amended complaint contains several documents reflecting the following: On May 15, 2013, Michael Sheahan, Superintendent, Five Points Correctional Facility, New York State Department of Corrections and Community Supervision, assigned L.T. Tad Levac to conduct a Tier III hearing for the misbehavior report for Eric Tolliver, "Date & Time 09/11/11 2:00 p.m." On May 24, 2013, the plaintiff sent a letter to the "Inspector General's Office, " informing it about "an incident between myself and LT. Levac, " described in the grievance the plaintiff filed on the same date as follows:

At the above date and approximately 2:45 P.M. I was called to the hearing room on the flats in 11-block to continue a re-hearing for a tier-3 hearing that was reverse[d] by the supreme court because of errors at the first hearing. As I got to the hearing and stand before LT. Levac, who was appointed by the superintendent to hold my rehearing, we start to talk about the witness that I do need to call[] to testify on my behalf, this LT. got very upset and start to swear and threatened me and stated that he is trying to find a way to not only find me guilty, but also how is it that he could give me at least a year in the SHU. I then ask this LT. Levac, what is the reason for him to be this upset at me? And his answer was "You and I know very well that I don't like you, and you know this from the time that you was [sic] voted the ILC chairman, and I was the supervisor for the ILC, I did already talk to you about bringing my name to the superintendent at the ILC executive meetings, and you not only did it once but twice, so now that I have you in front of me for a new hearing what do you really think is going to be the out come [sic]?" This LT. Levac, then ordered me out of the room, and I complied and went back to my cell and tell my cell mate what just took place between myself and the LT. Therefore, because of this fact, it is impossible for me to get a f[ai]r hearing. Therefore, I am also requesting the video recorder of the hearing room between 2:30 P.M. and 3 P.M. on the above date be saved for my review. I also want to state that this officer have [sic] been threatening me since I was the ILC chairman and he was the staff advisor. ACTION REQUESTING: That this hearing officer Mr[.] Levac, recuse himself as my hearing officer and a new hearing officer be appointed.

The plaintiff's grievance was denied. On June 25, 2013, the plaintiff's appeal of grievance number "FPT 27560-13, " entitled "WANTS H.O. TO RECUSE SELF, " was denied with the following explanation:

The investigation reveals that grievant alleges the Hearing Officer harassed and threatened him during a re-hearing for an incident at Sullivan CF. The Hearing Officer supplied a written statement and stated that he denies threatening or swearing at the grievant. The Hearing Officer states that this was a re-hearing and the time that was previously issued to the grievant cannot be exceeded and that the hearing had already been extended several times to retrieve the 14 witnesses that the grievant requested.

On June 26, 2013, the plaintiff made the following Appeal Statement in connection with the June 25, 2013 denial of his grievance: "I disagree with this decision due to the fact that I have yet to receive a written disposition of this (so-called superintendent's hearing) in violation of 7 NYCRR 254.7(A) Sec. 5 (24 hours violation)." The plaintiff's "grievance FPT-27560-13 entitled Wants Hearing Officer to Recuse Self was rec'd by CORC on 7/8/13."

On July 26, 2013, the plaintiff filed the following grievance:

On 7-16-2013, I receive[d] my inmate monthly statement and notice that five dollars ($5) was taken from my inmates account for a Tier-3 hearing, that [was] held out of my presen[c]e, it states that I was found guilty, I then did a F.O.I.L. request to have the tapes and documents of this hearing sent to me for my review, due to the fact that the hearing officer LT. Levac, did not send me any decision of this hearing or any notice of my rights to appeal, neither did he or any other officer advise me of the rights I am giving up if I refused to attend the hearing in person. However, on 7-26-2013, a[n] officer from the F.O.I.L. office brings me a tape player and [a] tape of this Tier-3 hearing. I then listen to this tape over 3-times and notice that this hearing officer intentionally doct[o]red-cut out a part of the hearing that record[ed] him swearing and threatening me, he also cut out the part where I caught the officer who wrote the false ticket against me, in his lies, these and many more misdeeds was done by this officer at this hearing. Action Requested: That this hearing against me be dismissed, and these facts I stated be investigated, and this officer be disciplined for his intentional wrong doings against me.

On August 1, 2013, "P.O. Neil, IGPS" of Five Points Correctional Facility, sent a letter to the plaintiff, stating that the time limit for filing his July 26, 2013 grievance had expired, and "an exception to the time limit for filing this grievance cannot be granted by me at this time because it has well surpassed the maximum 45-day limit in which such an exception might be granted." On August 4, 2013, the plaintiff appealed the August 1, 2013 letter, contending that he

did not know that my tier three hearing tape was intentionally tempered with, and all of my objections w[ere] earse[d] until I made my f.o.i.l. request and have the chance to listen to the tape, then I notice that the tape was tampered with, and that[']s the day I file my grievance on this issue, therefore, my grievance is on time because I file[d] my grievance on the date that I discover[ed] the violation.

On August 13, 2013, a "Response of IGRC" stated that the finding of untimeliness was correct, since "Directive 4040 leaves no wiggle room in allowing an exception to the time frame for filing a grievance beyond 45 days from the date of the occurrence, " which, in this case, "was the hearing date, not the date of discovery." The plaintiff appealed the August 13, 2013 determination, but his appeal was denied on August 20, 2013, based on the finding that "time frame was exceeded and, as such, rejection of the grievance as untimely was appropriate. It is noted that grievant had not exhausted his disciplinary appeal options on 08/01/13."

Exhibit B to the Proposed Amended Complaint

Exhibit B to the proposed amended complaint contains the plaintiff's July 16, 2013 request for a discretionary review by the superintendent. In that document, the plaintiff claimed violations of his due process rights, including his right to: (i) be advised of the rights he is giving up in refusing to attend his disciplinary hearing; (ii) receive a copy of the disposition and evidence relied upon at the hearing; and (iii) be notified of his right to appeal. On August 11, 2013, the plaintiff inquired about the status of his request for discretionary review. A letter to the plaintiff from R. Coveny, Deputy Superintendent for Security, Five Points Correctional Facility, New York State Department of Corrections and Community Supervision, dated August 13, 2013, stated: "I am in receipt of your letter to Superintendent Sheahan regarding a Discretionary Review. After review, you do not currently have any disciplinary sanctions in effect." On August 20, 2013, the plaintiff sent another request for discretionary review to "Dep. Coveny, " explaining the background of his grievance and stating: "I think that you may have misunderstood what is it I was inquiring about, therefore, now that I have inform[ed] you about the facts of the matter, please I am asking, what is the status of my discretionary review request that ...

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