United States District Court, N.D. New York
CHRISTIAN COLON, Plaintiff pro se.
JUSTIN L. ENGEL, Ass't Att'y Gen., for the Defendants.
REPORT and RECOMMENDATION
ANDREW T. BAXTER, Magistrate Judge.
This matter has been referred to me for Report and Recommendation by the Honorable David N. Hurd United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
In this civil rights complaint, plaintiff alleges that on May 25, 2011, defendant K. Norcross filed a false misbehavior report against plaintiff because he refused to identify fellow inmate after he was "instructed" to do so by defendant Lieutenant Allen, during an interview which took place on the same day. (Amended Complaint ("AC") ¶ D at CM/ECF p.2) (Dkt. No. 10). Plaintiff also claims that defendant Captain Holdridge denied plaintiff due process during his subsequent disciplinary hearing. (Id. at pp.3-4). Plaintiff does not request any form of relief in the amended complaint. However, the original complaint requested both monetary and injunctive relief. (Compl. ¶ 8 at p.9) (Dkt. No. 1).
Presently before the court is the defendants' motion to dismiss the complaint in its entirety for lack of jurisdiction and for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Dkt. No. 25). For the following reasons, this court agrees with the defendants and will recommend dismissing plaintiff's complaint.
I. Facts and Procedural History
On May 25, 2011, plaintiff was interviewed by a New York State Police Trooper regarding the death of inmate Poulsen. (AC at p.2). Plaintiff alleges that the trooper showed plaintiff a picture of an inmate named "Nunez, " a/k/a "Scar" and asked plaintiff to identify this inmate as the person who "authorized the killing of inmate Poulsen." (Id. ) Plaintiff was that in exchange for his "cooperation, " he would be placed in Protective Custody. Plaintiff states that he told the trooper that he did not know if "that was a fact, " and refused to "lie about the situation." (Id. ) Plaintiff states that defendant Lieutenant Allan then entered the room, and instructed plaintiff to identify Scar or plaintiff would be taken to "Unit 14 (SHU) and would regret not cooperating." (Id. )
After plaintiff continued to refuse to identify Scar, plaintiff was taken to Unit 14 and issued a misbehavior report the same day. (Id. at 3). In the misbehavior report, which was written by defendant Norcross, plaintiff was charged with assault, possession of a weapon, and violent conduct. (Id. ) The misbehavior report was based upon information given to defendant Norcross by a "confidential informer, " who stated that he "directly observed" plaintiff making a "slashing motion" with his arms. (Id. ) Plaintiff claims that the confidential informant's statement was inadequate in various ways. (Id. )
Defendant Captain Holdridge was assigned as the hearing officer for plaintiff's disciplinary hearing. Plaintiff claims that defendant Holdridge denied him due process at the hearing. Plaintiff alleges that he requested five witnesses to testify on his behalf, but that defendant Holdridge denied all but one of the witnesses. Plaintiff claims that two of the witnesses were denied because they were not present during the incident and two witnesses were denied because they "refused to testify." (Id. at 4). However, plaintiff alleges that the witnesses who were not present during the incident had information from other inmates would not come forward for fear of reprisal. Plaintiff also claims that the two other witnesses "stated that they never refused to testify." (Id. )
Plaintiff was found guilty and sentenced to forty-eight month in SHU and fortyeight months loss of good time. Plaintiff appealed the disciplinary hearing, but the result was affirmed at all levels of the disciplinary process. Plaintiff states that he filed an Article 78 proceeding in the Appellate Division, Third Department which was denied on September 20, 2012. (AC at p.6).
Plaintiff filed this action on December 16, 2013. (Dkt. No. 1). After allowing plaintiff to resolve an issue with his in forma pauperis ("IFP") application, the court issued an order dismissing the New York State Police from the action; dismissing defendants Annucci and LaValley without prejudice for lack of personal involvement; denying appointment of counsel, and directing plaintiff to file an amended complaint if he wished the complaint to proceed. (Dkt. No. 8). Plaintiff filed this amended complaint on May 5, 2014. (Dkt. No. 10).
On September 30, 2014, Judge David N. Hurd accepted the amended complaint for filing, and construed the amended complaint as raising the following claims:
(1) a claim that defendant Norcross issued plaintiff a false misbehavior report.
(2) First Amendment retaliation claims against defendants Allen and Norcross.
(3) a Fourteenth Amendment Due Process claim against defendant Holdridge.
(Dkt. No. 11 at 3). Judge Hurd dismissed defendants Annucci and LaValley with prejudice; and dismissed the false misbehavior report claim as against defendant Norcross. He allowed the First Amendment retaliation claim to survive as against defendants Norcross and Allan. (Dkt. No. 11). Judge Hurd also found that plaintiff's due process claim as against defendant Holdridge could survive "if and when" plaintiff filed the required waiver pursuant to Peralta v. Vasquez, 467 F.3d 98, 103 (2d Cir. 2006).
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that a section 1983 action, seeking damages is not cognizable if a decision in favor of the plaintiff would necessarily invalidate a criminal conviction unless the conviction or sentence had been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by a federal habeas court. 512 U.S. at 486-87. This is referred to as the "favorable termination rule." In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court extended the rationale in Heck to section 1983 challenges to prison disciplinary proceedings in which a decision in plaintiff's favor would necessarily reverse the administrative decision revoking a plaintiff's good-time credits, thereby affecting the length of the plaintiff's confinement. 520 U.S. at 644.
In Peralta, the Second Circuit held that Heck's "favorable termination" rule was not an absolute bar to a prisoner who was subject to "mixed sanctions" as the result of a disciplinary hearing. 467 F.3d at 104. "Mixed sanctions" are defined as "sanctions that affect both (a) the duration of [plaintiff's] imprisonment and (b) the conditions of his confinement." Id. The loss of good time affects the duration of plaintiff's confinement, while the SHU sentence only affects the conditions of plaintiff's confinement. The Second Circuit held in Peralta, that an inmate subject to mixed sanctions could proceed separately under section 1983 with a challenge to the sanctions which affect the conditions of his ...