United States District Court, W.D. New York
JUNIOR L. CEPEDA, Plaintiff,
L. URBAN, and M. JAMALKOWSKI, Defendants.
JUNIOR L. CEPEDA, Pro Se, Bronx, New York.
ERIC T. SCHNEIDERMAN, Attorney General, State of New York, GEORGE MICHAEL ZIMMERMAN, Assistant Attorney General, of Counsel, Buffalo, New York, Attorney for Defendants.
REPORT and RECOMMENDATION DECISION and ORDER
LESLIE G. FOSCHIO, Magistrate Judge.
This case was referred to the undersigned by Honorable William M. Skretny on June 10, 2014, for pretrial matters, including report and recommendation on dispositive motions. The matter is presently before the court on Defendants' motions to dismiss for failure to state a claim (Docs. Nos. 11 and 21), respectively filed June 19, and October 10, 2013, and Plaintiff's motion for leave to file an amended complaint (Doc. No. 25), filed November 12, 2013.
On May 4, 2012, Plaintiff Junior L. Cepeda ("Plaintiff" or "Cepeda"), proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. § 1983, alleging that while incarcerated at Orleans Correctional Facility ("the correctional facility" or "Orleans"), he was the subject of a false misbehavior report ("the Misbehavior Report" or "MR"), and subsequently was denied procedural due process in connection with the administrative disciplinary hearing held with regard to the Misbehavior Report. Defendants to this action include the disciplinary hearing officer L. Urban ("Urban"), and the assigned inmate hearing assistant M. Jamalkowski ("Jamalkowski"), both employees of New York Department of Corrections and Community Supervision ("DOCCS").
On June 19, 2003, Defendant Jamalkowski filed a motion to dismiss for failure to state a claim (Doc. No. 11) ("Jamalkowski's Motion"), supported by the attached Memorandum of Law in Support of Defendant's Motion to Dismiss (Doc. No. 11-1) ("Jamalkowski's Memorandum"). In opposition, Plaintiff filed on July 1, 2003, his Memorandum of Law in Support of Plaintiff's Answer to Defendants' Motion to Dismiss (Doc. No. 14) ("Plaintiff's Response"). On October 10, 2013, Defendant Urban filed a motion to dismiss for failure to state a claim (Doc. No. 21) ("Urban's Motion"), supported by the attached Memorandum of Law in Support of Defendant Urban's Motion to Dismiss (Doc. No. 21-1) ("Urban's Memorandum"). Plaintiff did not file any papers in opposition to Urban's Motion.
On November 12, 2013, Plaintiff filed his Motion for Leave to File an Amended Complaint (Doc. No. 25) ("Plaintiff's Motion"), attached to which is a copy of the proposed amended complaint ("Proposed Amended Complaint"). On December 16, 2013, Defendants' filed the Memorandum of Law in Opposition to Plaintiffs' Motion to Amend (Doc. No. 27) ("Defendants' Response"). Oral argument was deemed unnecessary.
On April 11, 2012, while Plaintiff was incarcerated at Orleans Correctional Facility ("the correctional facility" or "Orleans"), Corrections Officer Moffatt ("C.O. Moffatt"), with the New York Department of Corrections and Community Supervision ("DOCCS"), conducted a frisk search of Plaintiff's cell, recovering Uniform Commercial Code ("UCC") materials, considered contraband under 7 NYCRR § 270.2[B][xx][113.30] ("Inmate Rule 113.30"). The unauthorized possession of certain UCC materials was banned by DOCCS Commissioner after it was determined that inmates often used UCC forms to file baseless and fraudulent liens or financing statements against DOCCS personnel and judicial officers for the sole purpose of harassing such individuals through credit impairment. See Neree v. O'Hara, 2011 WL 3841551 at ** 1, 8 (N.D.N.Y. July 20, 2011), a dopted by 2011 WL 3841553 (Aug. 29, 2011). On April 16, 2012, Plaintiff was served with the Misbehavior Report, charging Plaintiff with a violation of Inmate Rule 113.30 ("An inmate shall not possess any Uniform Commercial Code (UCC) Article 9 form...."). Although the contraband was found in Plaintiff's cell on April 11, 2012, the MR referred to the incident as having occurred on April 13, 2012. On April 17, 2012, Plaintiff met with Defendant M. Jamalkowski ("Jamalkowski"), who had been assigned, pursuant to 7 NYCRR § 254.5, to assist Plaintiff in preparing for the Tier III superintendent's hearing on the MR ("hearing"), scheduled for April 25, 2012. Plaintiff provided Jamalkowski with the names of witnesses for Jamalkowski to interview, along with a list of documents for Jamalkowski to retrieve for use in the hearing. According to Plaintiff, Jamalkowski did not interview any of the witnesses nor retrieve any of the documents, as Plaintiff had requested, in violation of relevant DOCCS Directives and Regulations.
Defendant Hearing Officer L. Urban ("Urban"), presided over the hearing which commenced on April 25, 2012, at which time Plaintiff refuse to enter a plea of guilty or not guilty, instead contending the MR was defective because it incorrectly indicated the date of the search of Plaintiff's cell and subsequent seizure of the contraband as April 13, 2012, rather than April 11, 2012. Urban advised Plaintiff the disciplinary hearing could continue in Plaintiff's absence, but Plaintiff was not removed from the room in which the hearing was conducted. Urban then called as a witness Sgt. M. Ritter ("Ritter"), of Greene Correctional Facility ("Greene"), who testified he had previously confiscated UCC materials from Plaintiff when Plaintiff was housed in Greene's SHU, placing the materials in Plaintiff's property bag. Plaintiff maintains that after the UCC material was confiscated from him at Greene, because Plaintiff was confined in SHU, he was unable to access his property bag to remove the UCC materials, and instead was again in possession of the materials on March 27, 2012, when Plaintiff received his property bag from an unidentified corrections officer upon being transferred to Orleans. According to Plaintiff, because the UCC materials were considered contraband, upon their confiscation at Greene, the materials never should have been placed in Plaintiff's property bag. Urban then adjourned the hearing for one day to review the evidence.
On April 26, 2012, the hearing reconvened with Urban entering a not guilty plea for Plaintiff over Plaintiff's objections, and informed Plaintiff Urban had placed a telephone call to Ulster Correctional Facility ("Ulster"), the correctional facility where Plaintiff was initially housed in DOCCS custody, and confirmed that upon being admitted to DOCCS custody, Plaintiff had received a copy of Inmate Rule 113.30. Plaintiff objected to Urban's investigation into the matter, requesting Urban to dismiss the MR for insufficient evidence. Urban, however, denied the request, found Plaintiff guilty of possession of contraband in violation of Inmate Rule 113.30, and imposed a prison disciplinary sentence of 18 months in SHU with corresponding loss of privileges.
On April 26, 2012, Plaintiff filed an appeal of the hearing disposition, which was affirmed on June 21, 2012, by Acting Director of SHU D. Venettozzi, who modified Plaintiff's prison disciplinary sentence, reducing the SHU confinement and loss of privileges to 14 months.
1. Dismissal for Failure to State a Claim
Both Defendants move pursuant to Fed.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)") to dismiss the Complaint for failing to state a claim for which relief can be granted. In particular, both Defendants Jamalkowski and Urban assert the Complaint must be dismissed because Plaintiff has admitted he is guilty of the disputed disciplinary charge, and the Complaint alleges only violations of New York regulations which are insufficient to support a § 1983 claim, Jamalkowski's Memorandum at 2; Urban's Memorandum at 2. Jamalkowski also moves to dismiss the Complaint because Plaintiff failed to exhaust his administrative remedies. Jamalkowski's Memorandum ...