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Gee v. Annucci

United States District Court, N.D. New York

February 7, 2017

CARL GEE, Plaintiff,
v.
ANTHONY J. ANNUCCI; et al., Defendants.

          CARL GEE Plaintiff, pro se Auburn Correctional Facility

          DECISION AND ORDER

          MAE A. D'AGOSTINO United States District Judge.

         I. INTRODUCTION

         The Clerk has sent to the Court for review a civil rights complaint brought by pro se plaintiff Carl Gee. Dkt. No. 1 ("Compl.").[1] Plaintiff, who is confined at Auburn Correctional Facility ("Auburn C.F."), has paid the filing fee for this action.

         II. SUFFICIENCY OF THE COMPLAINT

         A. Standard of Review

         Section 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.

         A court 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)).

         B. Summary of the Complaint

         The 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).[2] 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.

         Plaintiff wants to participate in the DOCCS Family Reunion Program ("FRP") at Auburn C.F. Compl. at 6.[3] 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.

         Plaintiff is scheduled to make his first appearance before the Board of Parole at the end of 2017. Compl. at 6.[4] 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. Id.

         Based 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.

         C. Analysis

         Plaintiff 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)).

         1. Defendant Brown (First Cause of Action)

         Plaintiff 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.

         To 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).[5] "[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)).[6] While not the only factor to be considered, the duration of a disciplinary confinement remains significant under Sandin. Colon, 215 F.3d at 231.[7] 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, ...


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