United States District Court, N.D. New York
HAYES Plaintiff Pro se, THOMAS J. McAVOY Senior United States
DECISION AND ORDER
J. McAvoy Senior, U.S. District Judge
plaintiff Taheen Hayes ("plaintiff") commenced this
civil rights action asserting claims arising out of his
confinement in the custody of the New York State Department
of Corrections and Community Supervision ("DOCCS").
Dkt. No. 1 ("Compl."). By Decision and Order filed
on December 15, 2016 (Dkt. No. 5) (the "December
Order"), this Court granted Plaintiff's IFP
application and reviewed the sufficiency of the complaint in
accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. §
1915A. On the basis of that review, the Court dismissed the
following, without prejudice: (1) Eighth Amendment claims
against defendants Superintendent Daniel F. Martuscello
("Martuscello"), Deputy of Security, Raymond
Shanley ("Shanley"), Inmate Counselor J. Iarrusso
("Iarrusso"), Correction Officer T. Dahkle
("Dahkle"), Correction Officer Jason A. Meier
("Meier"), Correction Officer Gregory E. Langtry
("Langtry"), Correction Officer Stephen A. Bence
("Bence") and Correction Officer E. Coon
("Coon"); (2) supervisory claims against
Martuscello and Shanley; (3) retaliation claim against
Dahkle; and (4) constitutional claims against Iarrusso for
failing to process grievances. Dkt. No. 5 at 20. Plaintiff
was given the opportunity to file an amended complaint to
assert any claim that was dismissed without prejudice.
See Id. at 20, n. 12. The Court ordered defendant
Correction Officer K. Hoffman ("Hoffman"), Meier,
Langtry, Bence, and Coon to respond to plaintiff's
retaliation claims. See Id. at 20.
before the Court is plaintiff's amended complaint. Dkt.
No. 8 ("Am. Compl.").
legal standard governing the dismissal of a pleading for
failure to state a claim pursuant to 28 U.S.C. §1915A(b)
was discussed at length in the December Order and it will not
be restated in this Decision and Order. See Dkt. No.
5 at 2-4. The Court will construe the allegations in
plaintiff's amended complaint with the utmost leniency.
See, e.g., Haines v. Kerner, 404
U.S. 519, 520 (1972) (holding that a pro se litigant's
complaint is to be held "to a less stringent standards
than formal pleadings drafted by lawyers.").
SUMMARY OF AMENDED COMPLAINT
an inmate currently confined at Clinton Correctional Facility
("Clinton C.F."), asserts claims related to his
confinement at Coxsackie Correctional Facility
("Coxsackie C.F."). See Am. Compl,
generally. On March 2, 2016, plaintiff filed a
grievance (CX-18859-016), related to his
dreadlocks. See Dkt. No. 1-1 at 2. On April
15, 2016, at 10:30 a.m., Dahkle ordered plaintiff to step out
of his cell, in the D-1 Gallery, for a search. See
Am. Compl. at 4. Plaintiff complied with
Dahkle's order to turn and face the wall for a pat frisk.
See Id. During the pat frisk, Dahkle pressed his
genitals against plaintiff's buttocks and ran his hands
into the interior portion of plaintiff's buttocks.
See Id. During the cell search, Dahkle asked
plaintiff sexually explicit questions related to
plaintiff's gender identification including, "do you
consider yourself a male or a female?" See Id.
at 4-5. Later that day, plaintiff reported the incident on
the PREA hotline. See Am. Compl. at 5.
April 17, 2016, plaintiff filed a grievance (CX-18908-016)
charging Dahkle with sexual assault. See Am. Compl. at
5; Dkt. No. 1-1 at 2. On April 18, 2016, plaintiff reported
the incident to Martuscello while the Superintendent was
making rounds in the cafeteria. See Am. Compl. at 5.
Martuscello took plaintiff's identification card and
advised, "someone will be coming to see you soon."
9, 2016, plaintiff was transferred to C-1 Housing unit.
See Am. Compl. at 5. Dahkle was working in that unit
and immediately began verbally harassing plaintiff. See
Id. at 5-6. Dahkle made sexually explicit statements,
called plaintiff derogatory names, and told plaintiff
"do not unpack your [expletive] . . if I have to
[expletive] you up myself, you're leaving this
block." See Id. at 6. At approximately 3:15
p.m., plaintiff was summoned to the Captain's office for
an interview with Martuscello and Shanley. See Id.
at 6. Plaintiff told defendants about his most recent
encounter with Dahkle and expressed his fear of retaliation.
See Am. Compl. at 6. Martuscello and Shanley
"laugh[ed] at [plaintiff]." See Id. at
14, 2016, plaintiff was housed in the A-3 housing unit.
See Am. Compl. at 7. When plaintiff left his cell
for callouts, recreation, or meals, he came into contact with
Dahkle, who worked the "3 to 7 pm" shift in A-2.
See Id. Dahkle continued to verbally sexually harass
plaintiff in the presence of other inmates and officers.
See Id. Plaintiff wrote to Martuscello, Shanley, and
Phyllis Harrison-Ross, M.D. ("Harrison-Ross"), the
Commissioner of the New York State Commission of
Correction. See id.
15, 2016, Hoffman issued a misbehavior report charging
plaintiff with creating a disturbance, failing to follow a
direct order, harassment, lying, and threats. See
Am. Compl. at 7; Dkt. No. 8-1 at 4. Hoffman reported that on
May 15, 2016, at approximately 6:31 p.m., he:
. . . heard yelling on the tier. I started to make a round
and could overhear inmate Hayes in A-31 cell. Yelling [sic]
out his cell window to another inmate saying, "yo all
you gotta do is call that PREA Hotline and say the C.O.
touched your [expletive] doing a frisk or something,
doesn't matter what you say. Just make something up,
trust me, it works all the time." I then approached his
cell door and gave him a direct order to stop yelling out of
his window to which he replied "I wasn't." I
then told him that I'd been listening to his conversation
and gave him a second direct order to stop yelling, to which
he replied "man, [expletive], I will put you [expletive]
on paper too." Inmate Hayes then sat on his bed with no
further incident. Area supervisor notified.
Dkt. No. 8-1 at 4.
16, 2016, plaintiff was transferred to F-3-36 cell and placed
in keeplock confinement pending a disciplinary hearing
related to the misbehavior report. See Am. Compl. at
8. At approximately 4:30 p.m., Meier came to plaintiff's
cell and asked plaintiff why he was in keeplock. See
Id. Plaintiff explained that Hoffman issued a
retaliatory misbehavior report. See Id. Meier called
plaintiff a "[expletive] liar" and told him to
"lock in." See Id. At approximately 5:30
p.m., plaintiff was directed to the front of the company for
a keeplock admission interview. See Am. Compl. at 8.
A registered nurse asked plaintiff, in Meier's presence,
whether plaintiff was sexually abused at Coxsackie C.F. and
plaintiff responded "yes." See Id. at 9.
Meier became agitated and threatened plaintiff while yelling
expletives and slurs at plaintiff. See Id. The nurse
asked if any sexual incident occurred within the last
forty-eight hours and plaintiff responded, "no."
See Id. The nurse "cleared" plaintiff and
left. See Am. Compl. at 9.
the nurse left, Meier opened "the cage" and
"stormed in, jumping in [plaintiff's] face."
See Am. Compl. 9. Meier threatened plaintiff with
bodily harm and was so agitated that he spit on
plaintiff's face. See Id. Meier accused
plaintiff of "get[ting] C.O.'s fired."
See Am. Compl. at 9. Plaintiff complied with
Meier's order to "lock in." See Id. at
10. Approximately thirty minutes later, plaintiff kicked his
cell door to get the attention of the supervising officer.
See Id. Plaintiff asked to speak to a sergeant but
his request was denied. See Id. As a result of the
incident, Meier issued a misbehavior report. See Am.
Compl. at 10. On May 17, 2016, plaintiff was escorted to the
Special Housing Unit ("SHU"). See id.
19, 2016, plaintiff received a memorandum from R.
LMSW-Counselor regarding his
"concerns." See Dkt. No. 8-1 at 13.
Paquette-Monthie informed plaintiff that she communicated
plaintiff's concerns to the Superintendent and the
"SORC." See Id. Paquette-Monthie told
plaintiff that Martuscello was "looking into" the
complaints and advised that "it is being handled."
See Id. The counselor urged plaintiff to stop filing
tickets and to use his SHU time, away from the offending
individual, to "relax" or he will "end up with
a lot of SHU time." See id.
23, 2016, while Martuscello and Shanley were making rounds in
the SHU, plaintiff expressed his concerns regarding his
safety and Meier's threats. See Am. Compl. at
10. Defendants "laughed and joked" and told
plaintiff to address the issue during his disciplinary
hearing. See Id. at 10-11.
24, 2016, plaintiff attended his Tier III disciplinary
hearing related to Meier's misbehavior report.
See Am. Compl. at 11. Plaintiff was found "not
guilty" of threats and violent conduct but guilty of
disobeying a direct order and creating a disturbance. See
24, 2016, plaintiff received a letter from Harrison-Ross,
dated May 17, 2016, that advised plaintiff that his
complaints regarding retaliation at Coxsackie C.F. and
accusations that Martuscello and Shanley failed to protect
plaintiff, were referred to the Office of Special
Investigations for review. See Am. Compl. at 11;
Dkt. No. 8-1 at 2.
10, 2016, plaintiff was released from the SHU. See
Am. Compl. at 12. Plaintiff was advised that he would no
longer be employed as a messhall worker. See Id.
Plaintiff subsequently filed a grievance (CX-19054-016) for
having his program revoked.See id.
11, 2016, plaintiff was summoned to the Captain's office
for an interview with Martuscello and Shanley. See
Am. Compl. at 13. When plaintiff arrived, Martuscello yelled
at plaintiff about his complaints and stated that
"anything can happen" to plaintiff. See
Id. Martuscello threatened to return plaintiff to the
SHU if he continued to complain. See id.
15, 2016, plaintiff filed a formal complaint regarding his
meeting with Martuscello and Shanley. See Am. Compl.
at 13; Dkt. No. 8-1 at 17. On June 20, 2016, plaintiff was
transferred to B-2, Division 6 cell. See Am. Compl.
at 14. Hoffman was waiting for plaintiff in the gallery and
threatened plaintiff. See Id. Hoffman told plaintiff
not to get "comfortable" because "you mess
with one of us (C.O.'s) you got to deal with all of
us." See Id. On June 17, 2016, plaintiff filed
a grievance (CX 18983-016) related to the retaliatory conduct
and harassment by Hoffman and Meier. See Am. Compl.
at 12; Dkt. No. 1-1 at 2.
24, 2016, plaintiff filed a petition pursuant to New York
Civil Service Law § 75 charging Dahkle and Hoffman with,
inter alia, threats of physical abuse and
harassment. See Am. Compl. at 14; Dkt. No. 8-1 at
20. Plaintiff served a copy upon the Acting DOCCS
Commissioner, the Office of Special Investigation, and
Martuscello. See Am. Compl. at 14.
29, 2016, plaintiff received a letter from Karen Bellamy
("Bellamy") in response to plaintiff's June 15,
2016 correspondence to Acting DOCCS Commissioner Anthony
Annucci. See Dkt. No. 8-1 at 16. Plaintiff was
advised that his grievance, CX-18983-16, alleging
retaliation, was pending with the
Superintendent. See Id. A copy of the letter
was sent to Martuscello. See id.
5, 2016, plaintiff received a letter from Deputy Counsel
Nancy Heywood regarding his Civil Service petition.
See Dkt. No. 8-1 at 30. Plaintiff was advised that
the New York Civil Service Law did not authorize an inmate to
initiate disciplinary proceedings against a DOCCS employee.
See Id. Plaintiff was advised to direct his
complaints to the Inmate Grievance Office at his facility.
7, 2016, plaintiff was summoned to the Inmate Grievance
Office. See Am. Compl. at 14. Iarrusso advised that
"some higher-up official in Albany" was
investigating plaintiff's grievances and complaints
against Dahkle. See Id. Plaintiff discussed the
events that had transpired between February 26, 2016 until
July 7, 2016. See Id. Iarrusso advised plaintiff
that if he ceased filing complaints, "all of this would
go away." See Am. Compl. at 15. Thirty minutes
later, Hoffman banged on plaintiff's cell door and
continued to harass plaintiff for filing grievances. See
Id. He also told plaintiff that "Dahkle said
hi." See id.
12, 2016, plaintiff was summoned to the Inmate Grievance
Office for a hearing regarding his complaints about SHU mail.
See Am. Compl. at 15. The hearing was conducted by
Iarrusso and Meier. See Am. Compl. at 15. Plaintiff claimed
that his grievances about Martuscello and Shanley had not
been filed despite the fact that he wrote the grievances one
month prior. See Id. at 15-16. Iarrusso angrily