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Smith v. Miller

United States District Court, S.D. New York

October 25, 2017

RAYSUN SMITH, Plaintiff,
v.
Correction Officer S. MILLER, individually and in his official capacity; Correction Officer L. TABOR, individually and in his official capacity; Correction Officer D. KOTHARI, individually and in his official capacity; Correction Officer DIAZ, individually and in his official capacity; Correction Officer J. RUFINO, individually and in his official capacity; Sergeant C. LLORENS, individually and in his official capacity; Sergeant G. HEAL, individually and in his official capacity; ONE JOHN DOE NURSE, individually and in his official capacity; Sergeant DEL BIANCO, individually and in his official capacity; Correction Officer A. RIOLLANO, individually and in his official capacity; M. O'RAFFERTY, individually and in his official capacity; Correction Officer ALLEN, individually and in his official capacity; Correction Officer F. SIOCO, individually and in his official capacity; JOHN DOE CORRECTION OFFICER; Captain HARRIS, individually and in his official capacity. Defendants.

          OPINION & ORDER

          NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE.

         Plaintiff Raysun Smith, proceeding pro se and in forma pauperis, brings this 42 U.S.C. § 1983 action against Defendants Correction Officer ("CO.") Miller, CO. Tabor, CO. Rufino, CO. Riollano, CO. O'Rafferty, Sergeant Del Bianco, CO. Sioco, CO. Allen, CO. Kothari, Sergeant Llorens, and Captain Harris, alleging that they violated his constitutional rights while he was in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Presently before the Court is a motion to dismiss portions of Plaintiffs Complaint submitted by Defendants Rufino, Riollano, O'Rafferty, Del Bianco, Sioco, Allen, and Harris.[1] Plaintiff has not submitted an opposition to this motion. For the following reasons, Defendants' partial motion to dismiss is GRANTED in part and DENIED in part.

         BACKGROUND

         I. Factual Allegations

         The following facts are derived from the Complaint and are assumed to be true for the purposes of this motion.

         a. Plaintiffs grievance and the January 5, 2Q15 incident

         On December 17, 2014, while Plaintiff was incarcerated at Fishkill Correctional Facility ("Fishkill"), a corrections officer refused to take Plaintiffs picture and issue him a new identification card because Plaintiffs hair was styled in cornrow braids. (Compl. ¶ 23-27, ECF No. 2.) On December 30, 2014, Plaintiff filed a grievance with the Inmate Grievance Resolution Committee ("IGRC") at Fishkill, claiming that the officer's refusal to issue him an identification card was an act of discrimination. (Id. ¶ 28.) Plaintiff was interviewed by the acting IGRC supervisor, Defendant Del Bianco, about the incident on January 5, 2015. (Id. ¶ 29-30.) During the interview, Defendant Del Bianco became angry and threatened to place Plaintiff in the Secured Housing Unit ("SHU") if he did not take the cornrow braids out of his hair. (Id. ¶ 32.) Defendant Del Bianco further threatened that "he would come up to Plaintiffs housing unit and check to see if Plaintiff had complied and if not he would kick his ass" or send one of his officers to "handle it for him." (Id. ¶ 33.) Plaintiff thereafter left the grievance office and returned to his housing unit. (Id.)

         Upon returning to his housing unit, fearing that he would be sent to the SHU, Plaintiff packed up all of his belongings as a precautionary measure. (Id. ¶ 35.) Plaintiff then left his housing unit to attend his daily assigned school program. (Id. ¶ 36.) When Plaintiff returned to his housing unit at about three in the afternoon, Defendant Miller confronted Plaintiff and asked him why his property was packed up. (Id. ¶ 43.) Plaintiff informed Defendant Miller about Defendant Del Bianco's threat to send Plaintiff to the SHU, to which Defendant Miller responded, "[G]et the fuck out of here, get away from my desk." (Id. ¶ 44.) Later that afternoon as Defendant Miller was distributing inmate mail in Plaintiffs housing unit, Defendant Miller instructed Plaintiff to go back to his room and unpack his property. (Id. ¶ 47.) Plaintiff responded "O.K" while simultaneously laughing at a piece of mail he had just received. (Id.) Defendant Miller, believing that Plaintiff was laughing at him, began yelling at Plaintiff. (Id. ¶ 48.) Defendant Miller asked Plaintiff, "Did you just rucking laugh at me?" and instructed Plaintiff to "go to [his] fucking room, unpack [his] shit" and not to come out for the night. (M)Defendant Miller then escorted Plaintiff back to his room, and "in a threatening manner stood close to Plaintiffs face and stated 'You think this is a game? Do you know where you are at?"' and warned, "I'll be back." (Id. ¶ 49.)

         Shortly thereafter, Defendant Miller returned to Plaintiffs room with Defendant Tabor, (Id. ¶ 53.)While Defendant Tabor stood outside of Plaintiff s room door, Defendant Miller approached Plaintiff, stated "It's not so funny now, " and punched Plaintiff in his left eye. (Id. ¶ 56-57.) Defendant Tabor then ran into the room and threw Plaintiff to the floor. (Id. ¶ 58.) Plaintiff was subsequently placed in handcuffs. (Id. ¶ 59.) Defendants Diaz and Kothari ran into Plaintiffs room and, along with Defendants Miller and Tabor, proceeded to kick and punch Plaintiff in the face, head, and body while he remained restrained on the floor. (Id. ¶ 60-61.)

         After nearly three minutes, Defendant Sgt. Llorens arrived to Plaintiffs room. (Id. ¶ 62.) Defendant Llorens was present for part of the beating and did not intercede. (Id. ¶ 66.) Plaintiff was then raised to his feet and placed in a chokehold. (Id. ¶ 64.) While in this chokehold, Defendants began beating Plaintiff once again. (Id. ¶ 67.) Plaintiff attempted to inform Defendant Llorens that he could not breathe. (Id. ¶ 68.) Defendant Llorens replied, "Now you know how Eric Gardner felt, " and laughed. (Id.)

         Defendant Heal arrived while these events were unfolding and also failed to intercede. (Id. ¶ 69.) Defendant Heal and the other officers involved in the beating eventually escorted Plaintiff to the Regional Medical Unit ("RMU"). (Id. ¶ 70.) The officers continued to beat Plaintiff as they escorted him to the RMU. (Id. ¶ 71.)

         Once at the RMU, Plaintiff was seen by a nurse-Defendant John Doe Nurse- who refused to document Plaintiffs injuries. (Id. ¶ 72-73.) The nurse told Plaintiff, "[T]he officers said nothing happened to you and that's what I'm going to write" and that "even if something did happen to you, you look like you deserved it, so I'll make sure there's no record of it because they did their job." (Id. ¶ 73-74.) Plaintiff did not receive medical treatment for his injuries. Plaintiff was thereafter taken to the SHU. (Id. ¶ 77.)

         On January 8, 2015, Plaintiff was informed that the IGRC had denied the grievance Plaintiff filed regarding the alleged discrimination that took place on December 17, 2014. (Id. ¶ 78.) Plaintiff appealed the denial to the facility's superintendent on January 9, 2015. (Id. ¶ 79.) The superintendent denied Plaintiffs grievance appeal on January 13, 2015. (Id. ¶ 81.) Thereafter, Plaintiff filed an appeal of the superintendent's decision to the Inmate Grievance Program Central Office Review Committee ("CORC") on January 16, 2015. (Id. ¶ 82.) Plaintiff received a denial of his discrimination appeal from CORC on April 1, 2015. (Id. ¶ 111.)

         On January 11, 2015, Plaintiff filed an additional grievance with the IGRC regarding the excessive use of force, discrimination, and denial of medical treatment that he experienced on January 5, 2015. (Id. ¶ 80.) Plaintiffs grievance was denied by the superintendent on February 5, 2015. Plaintiff filed a timely appeal with CORC. (Id. ¶ 90.) On April 29, 2015, Plaintiff received a denial of his excessive force appeal to CORC. (Id. ¶ 112.)

         b. Acts of Retaliation

         After Plaintiff filed his grievance for the events that took place on January 5, 2015, Plaintiff alleges that many Defendants retaliated against him. First, on February 3, 2015, Defendants Allen and the John Doe CO. entered Plaintiffs cell to take a photograph of Plaintiffs cellmate, Troy Evans. (Id. ¶ 83.) Mr. Evans was asleep at the time, however, and the unnamed CO. asked Plaintiff to wake him. (Id. ¶ 84.) Plaintiff responded that waking his cellmate was not his job. (Id. ¶ 85.) Defendant Allen, the other officer, and Plaintiff then got into a verbal dispute. (Id. ¶ 86.)

         The next day, during lunchtime, Defendant Allen opened the food slot in Plaintiffs cell door and intentionally threw two cups of liquid at Plaintiff. (Id. ¶ 88.) Defendant Allen then told Plaintiff, "[S]ee what happens when you piss officers off." (Id. ¶ 89.) Plaintiff alleges that Allen was clearly referring to both the verbal altercation from the previous day and the January 5thincident. (Id. ¶ 90.) Fearing for his safety, Plaintiff filed an official grievance relating to this incident on February 4, 2015. (Id. ¶ 92.)

         A second incident occurred on February 10, 2015, when Plaintiff alleges he was issued a retaliatory and false inmate misbehavior report by Defendant Rufino that was cosigned by Defendant Sioco. (Id. ¶ 94.) In the report, Defendant Rufino alleged that Plaintiff was yelling into the gallery and refused to stop, stating "[G]o ahead, give me a ticket, I don't care." (Id. ¶ 95.) At a disciplinary hearing held on February 18, 2015 regarding the hearing, Plaintiffs cellmate admitted both orally and in a written statement that he was the one yelling into the gallery and speaking to Defendant Rufino. (Id. ¶ 99-98.) Nonetheless, Plaintiff was found guilty of the allegations. (Id. ¶ 99.) Plaintiff subsequently filed an appeal to the superintendent to address the retaliatory ticket on February 8, 2015. Captain Harris denied the appeal and Plaintiff filed an appeal with DOCCS on February 27, 2015. (Id. ¶ 100.) Plaintiffs DOCCS appeal was denied on March 10, 2015. (Id. ¶ 102.)

         On February 22, 2015, Plaintiff also filed a grievance stating that he was being fed his meals off of dirty trays in retaliation to the January 5, 2015 incident. (Id. ¶ 104.)

         Finally on March 1, 2015, Defendants Riollano and Rufino searched Plaintiffs cell. (Id. ¶ 105.) Shortly thereafter, on March 7, 2015, Defendants O'Rafferty and Rufino again searched Plaintiffs cell. (Id. ¶ 106.) During this second search, Defendants O'Rafferty and Rufino placed their booted feet onto Plaintiffs pillow and left footprints on Plaintiffs bedding. (Id. ¶ 107.) Defendants O'Rafferty and Rufino also spit on Plaintiffs Muslim prayer rug during their search. (Id. ¶ 108.) Fearing for his safety and religious freedom, Plaintiff filed a grievance to address the retaliatory actions of Defendant O'Rafferty. (Id. ¶ 109.)

         Plaintiff initiated this action pursuant to 42 U.S.C. § 1983 on December 07, 2015, alleging violations of his First and Eighth Amendment rights. Defendants filed the present motion to dismiss portions of Plaintiff's Complaint on October 25, 2016. The motions is unopposed.

         STANDARD ON A MOTION TO DISMISS

         Under Rule 12(b)(6), the inquiry for motions to dismiss is whether the complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl Corp. v. Twombfy, 550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010) (applying same standard to Rule 12(c) motions). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. The Court must take all material factual allegations as true and draw reasonable inferences in the non-moving party's favor, but the Court is '"not bound to accept as true a legal conclusion couched as a factual allegation, ' " or to credit "mere conclusory statements" or "[t]hreadbare recitals of the elements of a cause of action." Iqbal, 556 U.S. at 678 (quoting Twombfy, 550 U.S. at 555).

         In determining whether a complaint states a plausible claim for relief, a district court must consider the context and "draw on its judicial experience and common sense." Id. at 679. A claim is facially plausible when the factual content pleaded allows a court "to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678.

         "Where, as here, a plaintiff proceeds pro se, the court must 'construe [] [his] [complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].' " Askew v. Lindsey, No. 15-CV-7496 (KMK), 2016 WL 499261, at *2 (S.D.N.Y. Sept. 16, 2016) (citing Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)). Yet, "the liberal treatment afforded to pro se litigants does not exempt apro se party from compliance with relevant rules of procedural and substantive law.' " Id. (citing Bell v. Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y. 2013)).

         DISCUSSION

         Liberally construed, Plaintiffs Complaint alleges claims under the First and Eighth Amendments. Specifically, Plaintiff suggests First Amendment retaliation claims against Defendants Allen, Rufino, Sioco, O'Rafferty, Riollano, and Harris and free exercise claims against Defendants Rufino and O'Rafferty. Additionally, Plaintiffs Complaint implies an Eighth Amendment failure to protect claim against Defendant Del Bianco. In the present motion, Defendants assert that (1) Plaintiffs claims should be dismissed for failure to exhaust administrative remedies, and (2) Plaintiff failed to state a claim for any constitutional violation. The Couit will address each set of claims in turn.

         I. Exhaustion

         Defendants first contend that several of Plaintiff s claims should be dismissed for failure to exhaust administrative remedies, including (1) Plaintiffs claim against Defendant Allen for throwing two cups of liquid at him; (2) Plaintiffs claim that he was being fed his meals off dirty trays; (3) Plaintiffs claim regarding the search of his cell conducted on March 1, 2015; and (4) Plaintiffs claim regarding the search of cell conducted on March 7, 2015. (Defs.' Mot. at 9.) The Court finds that dismissal of Plaintiff s above claims for failure to exhaust is inappropriate at this time.

         Under the Prison Litigation Reform Act of 1995 ("PLRA"), "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "The PLRA's exhaustion requirement 'applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."' Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (quoting Sorter v. Nussle, 534 U.S. 516, 532, (2002)).

         Exhausting all remedies '"means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'" Washington v. Chaboty, No. 09-CV-9199, 2015 WL 1439348, at *6 (S.D.N.Y.Mar. 30, 2015) (quoting Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009)). "[B]ecause 'it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion[J ... [t]he exhaustion inquiiy . .. requires that [the court] look at the state prison procedures and the prisoner's grievance to determine whether the prisoner has complied with those procedures.'" Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)).

         A person detained or incarcerated at a DOCCS facility must exhaust all steps of the Inmate Grievance Resolution ("IGR") Program ("IGRP"). See Robinson v. Henschel, No. 10-CV-6212, 2014 WL 1257287, at * 10 (S.D.N.Y. Mai-. 26, 2014). The IGRP provides a three-tiered process for adjudicating inmate complaints: (1) the prisoner files a grievance with the IGR committee ("IGRC"), (2) the prisoner may appeal an adverse decision by the IGRC to the superintendent of the facility, and (3) the prisoner then may appeal an adverse decision by the superintendent to the Central Office ...


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