United States District Court, N.D. New York
GEE Plaintiff, pro se Auburn Correctional Facility
DECISION AND ORDER
D'AGOSTINO United States District Judge.
Clerk has sent to the Court for review a civil rights
complaint brought by pro se plaintiff Carl Gee. Dkt. No. 1
("Compl."). Plaintiff, who is confined at Auburn
Correctional Facility ("Auburn C.F."), has paid the
filing fee for this action.
SUFFICIENCY OF THE COMPLAINT
Standard of Review
1915A(b) of Title 28 of the United States Code directs that a
court must review any "complaint in a civil action in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity" and must
"identify cognizable claims or dismiss the complaint, or
any portion of the complaint, if the complaint . . . is
frivolous, malicious, or fails to state a claim upon which
relief may be granted; or . . . seeks monetary relief from a
defendant who is immune from such relief." 28 U.S.C.
§ 1915A; see Carr v. Dvorin, 171 F.3d 115, 116
(2d Cir. 1999) (per curiam) (Section 1915A applies to all
actions brought by prisoners against government officials
even when plaintiff paid the filing fee). Thus, although the
court has the duty to show liberality toward pro se
litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d
Cir. 1990) (per curiam), and should exercise "extreme
caution . . . in ordering sua sponte dismissal of a
pro se complaint before the adverse party
has been served and both parties (but particularly the
plaintiff) have had an opportunity to respond, "
Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983)
(internal citations omitted), the court also has a
responsibility to determine whether plaintiff may properly
proceed with this action.
should not dismiss a complaint if the plaintiff has stated
"enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although the court should construe the factual allegations in
the light most favorable to the plaintiff, "the tenet
that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions." Id. "Threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Id.
(citing Twombly, 550 U.S. at 555). Thus, "where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not 'show[n]' - 'that the
pleader is entitled to relief.'" Id. at 679
(quoting Fed.R.Civ.P. 8(a)(2)).
Summary of the Complaint
following facts are set forth as alleged in plaintiff's
complaint. In August 2015, plaintiff was issued a misbehavior
report charging him with drug use. Compl. at 3; see
Dkt. No. 1-1 ("Exs.") at 4-40 (Transcript of
Disciplinary Hearing). Defendant Lt. Brown served as the hearing
officer at plaintiff's disciplinary hearing. Id.
Plaintiff maintained that the charges "were fabricated
in retaliation" by Sgt. Volpe (not a defendant), and
plaintiff sought to call several witnesses and to introduce
numerous records in support of that defense. Compl. at 3-4.
Lt. Brown denied those requests and limited the evidence to
the urinalysis test which returned positive for drugs.
Id. Plaintiff objected during the hearing to Lt.
Brown's bias. Id. at 5. Plaintiff was found
guilty and sanctioned with 180 days keeplock confinement and
loss of packages, commissary, telephone, and visiting
privileges, with 90 days of the sanction on plaintiff's
visits suspended to sixty days. Id. at 6; Exs. at
38. On administrative appeal, the disciplinary determination
was modified to reduce the sanctions from 180 days to 135
days; the sanction on plaintiff's visiting privileges was
reduced to 90 days (suspended to October 26, 2015).
Id.; Exs. at 2.
wants to participate in the DOCCS Family Reunion Program
("FRP") at Auburn C.F. Compl. at 6. As of the date
plaintiff signed his complaint, his application was pending.
Id. Plaintiff's FRP application is "subject
to be denied" as a result of Lt. Brown's
determination that he was guilty of drug use. Id.
is scheduled to make his first appearance before the Board of
Parole at the end of 2017. Compl. at 6. Lt. Brown's
disciplinary determination will be included in the DOCCS
Inmate Status Report prepared for that hearing and will be
"take[n] into consideration" by the Board of Parole
in determining plaintiff's eligibility for release.
upon the foregoing, plaintiff asserts claims for the
violation of his constitutional rights protected under the
First, Fifth, and Fourteenth Amendments. Compl. at 2, 6-7. In
addition to Lt. Brown, the complaint names DOCCS Acting
Commissioner Annucci, Director of Ministerial, Family, and
Volunteer Services Morris, and FRP Offender Rehabilitation
Coordinator Creehan, as defendants. Id. at 1-2.
Plaintiff seeks an award of damages against Lt. Brown.
Id. at 7. As against defendants Annucci, Morris, and
Creehan, sued only in their official capacities, plaintiff
seeks injunctive relief enjoining the use of the disciplinary
determination in connection with consideration of
plaintiff's FRP application and/or his application for
parole release. Id. at 7-8. For a complete statement
of plaintiff's claims and the facts he relies on in
support of those claims, reference is made to the complaint.
seeks relief pursuant to 42 U.S.C. § 1983 ("Section
1983"), which establishes a cause of action for
"'the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws' of the
United States." Wilder v. Virginia Hosp.
Ass'n, 496 U.S. 498, 508 (1990)); see also Myers
v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, at *2
(N.D.N.Y. Apr. 10, 1995) (McAvoy, C.J.) (finding that
"[Section] 1983 is the vehicle by which individuals may
seek redress for alleged violations of their constitutional
rights"). "Section 1983 itself creates no
substantive rights, [but] . . . only a procedure for redress
for the deprivation of rights established elsewhere."
Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). To
state a claim under Section 1983, a plaintiff must allege
that the conduct deprived him or her of a right guaranteed
under the Constitution of the United States. Snider v.
Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares
v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993)).
Defendant Brown (First Cause of Action)
claims that he was denied due process at the disciplinary
hearing conducted by defendant Brown. Compl. at 6. Plaintiff
contends that urinalysis test result was fabricated, and
claims that he not able to defend himself against the charge
because Brown improperly denied his request to call several
witnesses and also denied access to documents he requested.
Id. at 3-6. Plaintiff was found guilty of drug use
and, as modified on appeal, sanctioned with 135 days of
keeplock confinement and loss of privileges. Id.;
Exs. at 2.
successfully state a Fourteenth Amendment claim for denial of
due process, a plaintiff must show that he or she both (1)
possessed an actual liberty or property interest, and (2) was
deprived of that interest without being afforded sufficient
process. See Ortiz v. McBride, 380 F.3d 649, 654 (2d
Cir. 2004); Tellier v. Fields,280 F.3d 69, 79-80
(2d Cir. 2000); Hynes v. Squillace, 143 F.3d 653,
658 (2d Cir. 1998); Bedoya v. Coughlin,91 F.3d 349,
351-52 (2d Cir. 1996). "[A] prisoner's restricted
confinement within a prison does not give rise to a liberty
interest, warranting procedural due process protection,
unless the conditions 'impose[ ] atypical and significant
hardship on the inmate in relation to the ordinary incidents
of prison life.'" Sealey v. Giltner, 197
F.3d 578, 583 (2d Cir. 1999) (quoting Sandinv.
Conner,515 U.S. 472, 484 (1995)). While not the
only factor to be considered, the duration of a disciplinary
confinement remains significant under Sandin.
Colon, 215 F.3d at 231. Thus, while under certain
circumstances confinement of less than 101 days could be
shown to meet the atypicality standard under Sandin
(see Colon, 215 F.3d at 232 n.5), the Second Circuit
generally takes the position that restrictive confinement,