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Tolliver v. Lilley

United States District Court, S.D. New York

February 19, 2015

ERIC TOLLIVER, Plaintiff,
v.
D.S.A. LYNN LILLEY, SUPERINTENDENT PATRICK GRIFFIN, LT. T. LEVAC, D.S.S. R. COVENY, DIRECTOR ALBERT PRACK, Defendants.

REPORT AND RECOMMENDATION

KEVIN NATHANIEL FOX, Magistrate Judge.

TO THE HONORABLE DEBORAH A. BATTS, UNITED STATES DISTRICT JUDGE

BACKGROUND

Procedural History

On February 3, 2012, Eric Tolliver ("Tolliver"), proceeding prose, commenced this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights arising out of his fiancee's September 11, 2011 visit with him at New York's Sullivan Correctional Facility and the September 2011 related disciplinary hearing. On April 4, 2014, the Court granted Tolliver's application for leave to supplement the complaint to add claims against: (1) Lt. T. Levac ("Levac"), a hearing officer at New York's Five Points Correctional Facility; (2) D.S.S. R. Coveny ("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. Tolliver's proposed new constitutional rights violation claims concern the 2013 hearing of his grievance in connection with the September 11, 2011 visit by his fiancee that formed the basis of the original claims asserted in the 2012 complaint. The defendants objected to the April 4, 2014 determination. Your Honor rejected the defendants' objection premised on a New York Civil Practice Law and Rules Article 78 proceeding, because it was based on "new developments not presented in the record at the time the Magistrate considered plaintiff's motion to supplement his complaint." Your Honor determined that the Court's April 4, 2014 findings were not clearly erroneous or contrary to law, approving, adopting and ratifying them.

Levac and Coveny made a motion to dismiss, "pursuant to Rule 12(b)(6) and (1) of the Federal Rules of Civil Procedure, " for an order dismissing the "Plaintiff's Supplemental Complaint or, in the alternative, an order pursuant to 28 U.S.C. § 1404(a) transferring venue from the Southern District to the Northern or Western District of New York." (Docket Entry No. 79). The plaintiff opposed the motion. (Docket Entry No. 86).

On October 24, 2014, the Court found that the motion was timely, but inconsistent factual assertions had been made concerning service of the summons and complaint on Levac and Coveny, because Nicole Crane ("Crane"), an "Inmate Records Coordinator II at Five Points Correctional Facility, " stated in her declaration that when she accepted service of process on behalf of Levac and Coveny, the documents accepted did not contain "the Supplemental Complaint, or Complaint, in this action, " which was contradicted by the United States Marshals Service's certification that the "Summons & Complaint" were served on Levac and Coveny. The Court directed that a hearing be held, with the following persons required to appear: the plaintiff, the deputy United States marshal who certified service on Levac and Coveny on July 10, 2014, Levac, Coveny and Crane. (Docket Entry No. 106). The hearing was held on November 21, 2014. Thereafter, the parties submitted their respective post-hearing arguments to the Court.

Defendants' Contentions

The moving defendants contend that personal jurisdiction was not obtained over them because they were not served with the complaint; thus, service of process was insufficient. They assert that the plaintiff lost his Article 78 proceeding, on April 1, 2014, and he is collaterally estopped from re-litigating the issues "which simply mirror those in his unsuccessful Article 78 proceeding." According to the moving defendants, the plaintiff failed to exhaust properly his claims against them because the claims, "arising from the 2013 re-hearing were, by definition, not exhausted" prior to the filing of the original complaint. Coveny asserts that the plaintiff failed to allege sufficiently Coveny's personal involvement in the alleged constitutional violation, and the fact that he "did not agree that a discretionary review was warranted... is hardly a basis to find personal involvement in a constitutional violation." The moving defendants assert that they are entitled to qualified immunity because the clearly established right they are alleged to have violated has not been identified, and "denying a prison disciplinary appeal is hardly a constitutional violation, particularly when that decision is subsequently upheld by an Article 78 court as not being unconstitutional." The moving defendants contend that no basis exists to allow claims not arising out of the Southern District of New York to proceed in that judicial district because "[t]he primary locus of the Supplemental Claims and Defendants is Five Points, which is located in the Western District of New York or, in the alternative, the Northern District, as those claims relate to Supplemental Defendant Prack." According to the moving defendants, they do not reside in the Southern District of New York, and none of the operative facts concerning the plaintiff's claims in the supplemental pleading occurred in that judicial district. The moving defendants assert that the convenience of the parties mandates that the supplemental claims be transferred to the Western or the Northern District of New York because the plaintiff's choice of venue is not controlling, given the facts of this case.

Plaintiff's Contentions

Tolliver contends that the motion is untimely and should be denied. He maintains that collateral estoppel does not apply because an "Article 78 Court does not have the power to award the type of relief available in a § 1983 action." Tolliver asserts that he exhausted all his administrative grievances remedies before filing his supplemental claims. He contends that he alleged sufficiently Coveny's personal involvement, by asserting that Coveny received his "request for a review of all the violations that [were] done against him by Lt. Levac, " but turned a blind eye to them. Tolliver contends he suffered an injury because "a RED highlight" covers his name "whenever he goes on his visits with any female visitor, " and he "must be seated in a[n] area of the visiting room where he could be watched at all times." According to Tolliver, he and any of his female visitors are watched not only by the officers, but also by "other inmates and their visitors, " and "at times these officers would just sit there and stare[] directly at the plaintiff and his visitor, and then just burst out laughing, and this causes plaintiff and his visitor to become very embarrassed, belittled and disrespected." Tolliver asserts that "this kind of offense on plaintiff[']s record could stop him from participat[ing] in the Family Reunion Program, " and further, require him "to take a sex offender's program, and could certainly prevent an inmate from obtaining parole approval at the board." Tolliver contends that the moving defendants' qualified immunity argument is baseless, because the New York regulations give the officials clear notice that the inmates have rights. Since these rights were well established at the time when the moving defendants violated them, they cannot be shielded by qualified immunity. Tolliver maintains that venue in this judicial district is proper, because the action started originally in the Southern District of New York and the court has discretion to permit his supplemental claims to be brought in the Southern District of New York.

Defendants' Reply

The moving defendants contend that the burden is on the plaintiff to show that personal service was proper "which he cannot do because he has no personal knowledge of which materials the U.S. Marshal[s] Service actually served on the Supplemental Defendants." The moving defendants assert that collateral estoppel applies because the Article 78 court rejected the plaintiff's due process and retaliation claims that the hearing officer was biased and conducted part of the hearing improperly, in the plaintiff's absence. Coveny asserts that the 2013 hearing does not implicate due process liberty rights because it imposed no sanctions. Moreover, since no sanctions were imposed, it cannot be said that Coveny's conduct was objectively unreasonable. The moving defendants contend that forcing them to defend against this action in the Southern District of New York is inconvenient and inappropriate, notwithstanding that the plaintiff is incarcerated in that judicial district.

In addition, the moving defendants submitted a declaration by Crane. Crane states that she is an "Inmate Records Coordinator II at Five Points Correctional Facility, " and "sometimes accept[s] service of legal documents on behalf of other Five Points employees." Attached to Crane's declaration is Exhibit A, which, according to her, contains "true and correct copies of all legal documents in this action received by me from the U.S. Marshals Service on July 10, 2014, " and "[n]owhere contained in Exhibit A is a copy of the Supplemental Complaint, or Complaint, in this action, and no such document was delivered to me."

The November 21, 2014 Hearing

The following testimony is pertinent to the July 10, 2014 service of process on Levac and Coveny:

Andrew Robinson ("Robinson"), the deputy United States marshal who performed the July 10, 2014 service on Levac and Coveny, testified that he signed "Process Receipt and Return" forms USM-285, addressed to Levac and Coveny. When Robinson received the packet containing process for Levac and Coveny from his supervisor, it was open. He testified that he "did go through the paperwork... just to be familiar with what I was presenting to Ms. Crane." After reviewing the process packages, Robinson placed them back in the envelope. He did not add to or remove anything from the envelope containing the process packages. Robinson delivered the process packages for Levac and Coveny to Crane. Crane reviewed the process packages, without making any objection to their content. Robinson showed Crane the summonses and instructed her that Levac and Coveny "had 21 days from [the] ...


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