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Richard v. Fischer

United States District Court, W.D. New York

August 7, 2014

JOHN WILLIS RICHARD, 91A0169, Plaintiff,
BRIAN FISCHER, Commissioner DOCS; ANTHONY ANNUCCI, Deputy Commissioner and Counsel of DOCS; KAREN BELLAMY, Assistant Director of Grievance, DOCS; MS. DIGNEAN, Senior Correctional Counselor, Five Points Correctional Facility; LT. GIANNINO, Lieutenant, Five Points Correctional Facility; G. GUINEY, Deputy Superintendent of Security, Five Points Correctional Facility; CHRISTOPHER LINDQUIST, Assistant Director of Grievance, DOCS; JOHN NUTTALL, Deputy Commissioner of Programs, DOCS; N. PARRISH, Educational Supervisor, Five Points Correctional Facility; THOMAS POOLE, Superintendent of Five Points Correctional Facility; Commissioner, MR. ALBERT PRACK, Director of Special Housing Unit Program, DOCS; THOMAS TANEA, Senior Correctional Counselor, Five Points Correctional Facility; and MS. ZENZEN, Deputy Superintendent of Programs, Five Points Correctional Facility, Defendants

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John Willis Richard, Plaintiff, Pro se, Fallsburg, NY.

For Anthony Annucci, Deputy Commissioner and Counsel of DOCS, Karen Bellamy, Assistant Director of Grievance, DOCS, Ms. Dignean, Senior Correctional Counselor, Five Points Correctional Facility, also known as, Ms. Digrean, Brian Fischer, Commissioner DOCS, Lt. Giannino, Lieutenant, Five Points Correctional Facility, G. Guiney, Deputy Superintendent of Security, Five Points Correctional Facility, Christopher Lindquist, Assistant Director of Grievance, DOCS, John Nuttall, Deputy Commissioner of Programs, DOCS, N. Parrish, Educational Supervisor, Five Points Correctional Facility, homas Poole, Superintendent of Five Points Correctional Facility, Commissioner, Mr. Albert Prack, Director of Special Housing Unit Program, DOCS, Thomas Tanea, Senior Correctional Counselor, Five Points Correctional Facility, Ms. Zenzen, Deputy Superintendent of Programs, Five Points Correctional Facility, Defendants: J. Richard Benitez, LEAD ATTORNEY, N.Y.S. Attorney General's Office, Department of Law, Rochester, NY.

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HON. ELIZABETH A. WOLFORD, United States District Judge.


Pro se Plaintiff John Willis Richard (" Plaintiff" ) brings this action against Defendants Brian Fischer, Anthony Annucci, John Nuttall, Karen Bellamy, Christopher Lindquist, Albert Prack, Thomas Poole, Sheryl Zehzen, Gerard Guiney, Norman Parrish, Andrew Giannino, Jennifer Dignean, and Thomas Tanea (collectively " Defendants" ) pursuant to 42 U.S.C. § § 1983, 1985, and 1986, alleging discrimination based on his race and religion, and retaliation. (Dkt. 1). Plaintiff's claims against the Defendants in their official capacities previously were dismissed on March 30, 2011. (Dkt. 11). Presently before the Court is Defendants' motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. 14). For the reasons set forth below, Defendants' motion to dismiss is granted in part and denied in part. Defendants' motion is granted as to all causes of action except as to Plaintiff's First Amendment retaliation claim against Defendant Thomas Tanea, and equal protection claim pursuant to 42 U.S.C. § 1983 against Defendants Jennifer Dignean and Thomas Tanea.


The statement of facts that follows is based on the allegations contained in Plaintiff's complaint. Plaintiff, a multiracial inmate, alleges that Defendants unlawfully discriminated against him on the basis of race and religion and retaliated against him for filing grievances while he was an inmate at Five Points Correctional Facility (" Five Points" ) in Romulus, New York. (Dkt. 1 at ¶ ¶ 4, 24, 188-189).

Plaintiff's allegations arise from Defendants' denial of employment opportunities by adopting and enforcing against him an alleged unwritten policy that inmates may not obtain employment outside of their cellblock. Specifically, Plaintiff, who was housed in 9-block at Five Points, alleges that he initially was denied employment in 10-block by Defendant Jennifer Dignean (" Dignean" ) based on racial and religious discrimination. Dignean allegedly called Plaintiff " black . . . Muslim or five percenter

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. . . a mixed race mutt black." ( Id. at ¶ ¶ 14, 24). Plaintiff further alleges that he was targeted by Dignean because he allegedly killed a white male. ( Id. at ¶ 236).

On March 28, 2007, Plaintiff filed grievance FPT-17029-07 related to the denial of employment outside his cellblock, citing " racial and attempted religious discrimination and harassment. . . ." ( Id. at ¶ 24). Plaintiff alleges that his grievance was received by Defendants Zenzen, Poole, and Bellamy, but they rejected his claims because they were engaged in a conspiracy to protect Dignean and themselves by undermining the grievance process, including enforcing an unwritten employment policy, failing to adequately investigate Plaintiff's grievance, and failing to interview witnesses. ( Id. at ¶ ¶ 27-55).

Plaintiff alleges that he again requested employment in 10-block utility from Dignean on May 9, 2007. ( Id. at ¶ ¶ 59, 62). At that time, Dignean was allegedly training Defendant Thomas Tanea (" Tanea" ) to handle these requests. ( Id. at ¶ ¶ 60-61). Dignean again denied Plaintiff employment in 10-block, stating that he could be assigned to a 9-block program only. ( Id. at ¶ 62). Plaintiff alleges that Dignean stated, " we already went through this before Mr. Richard . . . [y]ou filed a grievance on that [and] the superintendent sided with me! [N]ot you! I'm giving you a 9 block program." ( Id.). When Plaintiff contested Dignean's statement by stating that he " [had] a case," that " Poole only protected you, like he do all of his employees," and that the employment policy was " not in writing," Dignean allegedly responded that Plaintiff would " lose again, we run this facility the way we want to, you'll see." ( Id.).

As a result of the alleged conspiracy, Plaintiff filed a complaint with Defendant Nuttall " outside of the grievance process" on May 11, 2007. ( Id. at ¶ ¶ 56-57). The complaint contained charges of " 1) Incompentency 2) Abuse of Authority 3) Failure in the performance of her duties 4) Failure to properly supervise subordinates 5) Making in house/unwritten rules without notice 6) Filing false reports." ( Id. at ¶ 58). In his complaint, Plaintiff requested that Defendants produce in writing the employment policy allowing them to deny him an " 8, 10, 11 block program, because [he was] already housed in 9 block. . . ." ( Id. at ¶ 63).[1] Plaintiff alleges that the policy never was produced. ( Id. at ¶ 64).

Plaintiff alleges that on June 14, 2007, he was called for a 9-block program that he did not request by Tanea. ( Id. at ¶ 65). Plaintiff refused the program and asked to be placed on the 10-block waiting list. ( Id.). Tanea allegedly " directly refused, smiling" and had a " hidden agenda" motivated by " retaliation and racism." ( Id.). Plaintiff further alleges that Tanea threatened him with " KL[2] in order to force [him] to take only a 9 block program," and that Tanea denied him employment outside of 9-block in retaliation for his filing grievances. ( Id. at ¶ ¶ 65-66). Plaintiff also alleges that Tanea refused to place Plaintiff on a waiting list for his requested programs, despite the fact that waiting

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lists were open to all other inmates appearing before him. ( Id. at ¶ 70).

Plaintiff filed a grievance as a result of his exchange with Tanea on June 20, 2007. ( Id. at ¶ 65). In the grievance, Plaintiff also attacked the dismissal of his prior grievances and alleged unfair hearing procedures. ( Id. at ¶ ¶ 102-104). Plaintiff alleges that his June 20, 2007 grievance was not responded to, so he filed another grievance, FPT-10871-07, and attached the June 20, 2007 grievance as an exhibit. ( Id. at ¶ ¶ 105-106). In his June 20, 2007 grievance, Plaintiff alleges that he requested a definition for the word " harassment" and that the Department of Corrections (DOCCS) must " properly define it, regardless, and post it, per Corr. Law . . . So when we file grievances, we know how to properly recognize it, and have sufficient evidence to support." ( Id. at ¶ 107). Plaintiff alleges that this request was included in his prior grievances, but Defendant Bellamy intentionally refused to provide a specific definition in order to isolate Plaintiff to 9-block " by racism, discrimination, unequal protection and continued conspiracy." ( Id. at ¶ ¶ 108-109, 111). Plaintiff alleges that Defendant Bellamy " again condoned her subordinates in a conspiracy of upholding an unwritten rule stating 'the grievant was offered a job . . . on 9 block.'" ( Id. at ¶ 110).

Plaintiff's remaining allegations concern the disciplinary hearings related to his refusal to accept alternative employment positions. Plaintiff alleges that Tanea " manipulatively and conspiratorily wrote a 6/14/07 retaliation, racist, discriminatory unequal protection report" to punish Plaintiff for his refusal of an employment position in 9-block, and in response to his grievances. ( Id. at ¶ ¶ 66-67). Plaintiff alleges that Tanea's disciplinary report " plays a major part in retaliation" because he " cannot write a report for 'refusal' of programs when 'waiting lists' are clearly open to everybody appearing before him." ( Id. at ¶ 70) (emphasis in original).

Plaintiff alleges that the disciplinary hearing officer, Defendant Giannino (" Giannino" ), " sabotage[d]" his disciplinary hearing once he realized that Plaintiff had a valid defense to the disciplinary report. ( Id. at ¶ ¶ 75-77). Specifically, Plaintiff alleges that Giannino improperly interrupted him and other witnesses, did not allow Plaintiff to " counter" the testimony of other witnesses, and denied him possession of documents to support his defense. ( Id. at ¶ ¶ 78, 89, 96). Plaintiff also alleges that Tanea lied at the disciplinary hearing by testifying that he did not have knowledge of Plaintiff's prior grievances and complaints, and that it was facility policy for every prisoner to have two programs. ( Id. at ¶ ¶ 83-84). Plaintiff alleges that Giannino found him guilty in order to " protect staff from misconduct." ( Id. at ¶ 95). Plaintiff allegedly " served 30 days" for the violations contained in Tanea's disciplinary report. ( Id. at ¶ 155).

On June 20, 2007, Plaintiff appealed the disciplinary hearing on the grounds that Giannino violated rules and regulations, was biased, and had an " intent to conspire and racially find [him] guilty." ( Id. at ¶ 97). Plaintiff alleges that the appeal was denied by Defendant Guiney, Deputy Superintendent for Security at Five Points, who was designated by Defendant Poole to review the appeal on his behalf. ( Id. at ¶ ¶ 98-99).

On July 22, 2007, Plaintiff wrote a letter to Tanea " outlining his improper conduct" and requesting a 10- or 11-block program. ( Id. at ¶ ¶ 156-157). Plaintiff did not receive a response, so he wrote a second letter on August 5, 2007, and a third letter on August 19, 2007. ( Id. at ¶ ¶ 158-161). Tanea allegedly never responded to any of Plaintiff's letters. ( Id. at ¶ 162). As a result,

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Plaintiff filed grievance FPT-17830-07 on August 22, 2007, stating that he did not receive a " callout" to date, was keep-locked for refusing a 9-block program, had filed a June 20, 2007 grievance to which he did not receive a response, and that he wanted his two programs and would not accept a program in 9-block. ( Id. at ¶ 163). The grievance committee responded that Plaintiff would be placed on " call out" to speak with the program committee. ( Id. at ¶ 164).

On September 5, 2007, Plaintiff appeared before the " program committee of Thomas Tanea" at his own request and presumably as a result of his August 22, 2007 letter, regarding his refusal to take a 9-block program on June 14, 2007. ( Id. at ¶ ¶ 125-126). At that time, Plaintiff asked Tanea for a written policy supporting the restriction of Plaintiff's employment to 9-block, but Tanea refused to provide the policy to Plaintiff. ( Id. at ¶ 127). Plaintiff again requested and was denied a 10-block program. ( Id. at ¶ 129). Tanea then issued Plaintiff a 9-block program, which he refused. ( Id. at ¶ ¶ 130-131).

Plaintiff alleges that, as a result of his refusal to accept the 9-block program, Tanea " wrote a 9/5/07 disciplinary report in retaliation, racism, discrimination and in a continued conspiracy . . . to punish me, and deny me equal protection of programs." ( Id. at ¶ 131). Tanea's report allegedly stated that Plaintiff was assigned to lawns and grounds; that it was explained to Plaintiff that there were no job openings in 10-block; and that Plaintiff was " advised . . . of the ramifications of his refusal. . . ." ( Id. at ¶ 166). Plaintiff further alleges that Tanea " manipulated his report to rely on a possible delay in programs to give away all available programs in 10-block," and that the September 5, 2007 retaliation report was written because " it effectively enforced an unwritten rule, policy to specifically keep [Plaintiff] in 9-block." ( Id. at ¶ ¶ 168, 170).

At the disciplinary hearing resulting from Tanea's September 5, 2007 report, Plaintiff alleges that he presented a defense that the report was written in retaliation, discrimination, and conspiracy ( id. at ¶ 134), but Defendant Parrish, Educational Supervisor at Five Points, sabotaged his hearing by denying him the ability to present witnesses on the grounds that testimony from such witnesses was not material or relevant to the incident ( id. at ¶ ¶ 136-139). Plaintiff was found guilty of the charges in Tanea's report on September 13, 2007, and was given " 90 day SHU solitary confinement." ( Id. at ¶ ¶ 146-147). Plaintiff appealed the decision on September 20, 2007. ( Id. at ¶ 148). The appeal was denied by Defendant Prack, Director of the Special Housing Unit, on November 15, 2007. ( Id. at ¶ ¶ 149-150).

Following the disciplinary hearing, on December 5, 2007, Plaintiff filed grievance FPT-18071-07, regarding alleged procedural violations at the disciplinary hearing. ( Id. at ¶ 172). Plaintiff alleges that Defendant Lindquist, CORC Director, denied the grievance to protect Defendants Dignean, Zenzen, Poole, Tanea, and Prack. ( Id. at ¶ 176). The grievance was denied on the grounds that the subject matter of the grievance was addressed by a prior grievance; that Defendants went on the record denying any improper action towards Plaintiff; and that Plaintiff did not present sufficient evidence to substantiate any malfeasance by Defendants. ( Id. at ¶ 178).

Plaintiff filed this action on December 3, 2010. (Dkt. 1). On June 28, 2011, Defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) arguing that: (1) Plaintiff has failed to allege facts necessary to support any constitutional violation for a 42 U.S.C. § § 1983, 1985, or

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1986 claim, because inmates do not have a constitutional right to employment during incarceration; (2) Plaintiff has failed to state an equal protection claim because he fails to allege that he was treated differently than similarly-situated inmates; (3) Plaintiff has failed to allege an adverse action sufficient to state a retaliation claim; (4) Plaintiff's due process claims must be dismissed; and (5) Plaintiff's claims that DOCCS employees violated their handbook and New York Correction Law fail to allege a constitutional violation. (Dkt. 15). Plaintiff submitted response papers that were filed on July 21, 2011. (Dkt. 18). The case was transferred to the undersigned on February 21, 2014 (Dkt. 21).


I. Legal Standard

" 'In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.'" Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991)). A court should consider the motion " accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor." Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (internal quotations and citation omitted). To withstand dismissal, a plaintiff must set forth " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " 'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the ...

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