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Davis v. Jackson

United States District Court, S.D. New York

January 8, 2018

TIQUAN DAVIS, Plaintiff,

          Tiquan Davis Ossining, NY Pro Se Plaintiff Yan Fu, Esq.

          New York State Attorney General New York, NY Counsel for Defendants Correction Officer Angela Jackson, Lieutenant Richard Donahue, Lieutenant V. George, Sgt. Ginah Shibah, Lieutenant O'Cana, Correction Officer T. Grant, Sgt. Todd Paroline, and C.O. Raymond L. Ortiz

          OPINION & ORDER


         Tiquan Davis (“Plaintiff”), proceeding pro se, brings this Action against Correction Officer Angela Jackson (“Jackson”), Correction Officer Raymond Ortiz (“Ortiz”), Sergeant Ginah Shibah (“Shibah”), Lieutenant Richard Donahue (“Donahue”), Lieutenant V. George (“George”), Lieutenant John Doe O'Cana (“O'Cana”), Correction Officer T. Grant (“Grant”), and Sergeant Todd Paroline (“Paroline”) (collectively “Defendants”), employees of the New York State Department of Correction and Community Supervision (“DOCCS”), pursuant to 42 U.S.C. § 1983. (See Am. Compl. (Dkt. No. 65).) Before the Court is Defendants' Motion to Dismiss. (See Dkt. No. 77.) For the reasons explained herein, Defendants' Motion To Dismiss is granted in part and denied in part.

         I. Background

         A. Factual Background

         The following facts are collected from Plaintiffs Complaint and are, for purposes of this Motion, accepted as true.

         1. The September 18, 2011 Incident

         Plaintiff is an inmate at Sing Sing Correctional Facility (“Sing Sing”) and was previously an inmate at Southport Correctional Facility (“Southport”). (See Am. Compl.) On September 18, 2011, Correction Officer Bonner (“Bonner”) gave Plaintiff authorization to make his Inmate Liaison Committee (“I.L.C.”) rounds on R&W Company in HBA-block, but, while he was making his “I.L.C. round” on R company, Jackson told Plaintiff to show his hands and, after he did so, to put his hands on the gate for a pat frisk. (See Id. ¶¶ 1-2.) At that time, Bonner yelled to Jackson to “leave [Plaintiff] alone, ” to which Jackson responded by saying, “tell him to get the fuck off my Company.” (Id. ¶ 3.) Plaintiff then turned to leave the company, but Jackson grabbed him by his sweater, and yelled, “[w]hat's all that you just dropped on the floor[?]” (Id.) Plaintiff, “in an attempt to stop . . . Jackson from grabbing him so roughly, ” grabbed Jackson's hands and told her to stop playing, at which time Correction Officers Sandiford and Grant grabbed Plaintiff from behind and took him to the ground without resistance from Plaintiff. (Id. ¶ 4.) While Plaintiff was being handcuffed, Shibah, the area supervisor, came and told Garcia to take Plaintiff to the shower on Q-Company and to take him to the hospital for a use of force examination. (See id ¶ 5.)

         While Plaintiff was in the hospital, he met with his I.L.C. staff advisor, Sergeant Williams (“Williams”), who asked Plaintiff, “[h]ow the hell did you let a chick like Jackson catch you with weed[?]” (Id. ¶ 6.) Plaintiff at first thought Williams was kidding, but Williams said he was “dead serious, ” and said that Jackson claimed that Plaintiff came on the company with a handful of loose marijuana. (Id.) Plaintiff said he never had any marijuana on him, let alone loose in his hand, and posited that Jackson “set him up” because he had complained to the night block sergeant that Jackson had been preventing him from doing rounds on the company a few nights before. (Id. ¶ 7.) Photos were taken of Plaintiff, and he provided a written statement. (See id.) Afterwards, he was taken to the disciplinary office to provide a urine sample, which came back negative for drug use. (See Id. ¶ 8.) Plaintiff was then brought to the HBC-SHU, and, while in the special housing unit (the “SHU”), he received a misbehavior report written by Jackson and authorized by Shibah on September 18, 2011, charging him with several rule violations, which he identifies as “106.10 (direct order), 115.10 (frisk), 100.11 (assault on staff), [and] 113.25 (drug possession).” (Id. ¶¶ 8-9.) Thereafter, a hearing was conducted by Officer Pinker, after which Plaintiff was found guilty of all of the charges except the frisk charge. (See Id. ¶ 9.) Plaintiff was given a penalty of 24 months in the SHU and 24 months' loss of all other privileges, including recommended loss of good time. (See id.)

         2. The October 20, 2011 Incident

         On or about October 20, 2011, while in the SHU, Ortiz came to Plaintiff's cell and asked, “are you ready[?]” (Id.) Plaintiff responded, “no, ” and Ortiz then said, “you wanna play games[, ] so now I'm going to play games.” (Id. ¶ 10.) Ortiz then told another correction officer to turn off the water in Plaintiff's cell, and Ortiz said, “I'm going to play games this time, let's see you get around this one, ” and “I remember when you wrote my boy Perez up, we ain't forget that.” (Id. ¶¶ 10-11.) Ortiz then ordered Plaintiff to urinate into two separate bottles, one of which Ortiz placed into his top pocket, and the other of which was placed in a cup with a lid on it. (See id.) As Ortiz was leaving, he said, “now I'm gonna show you how to play games.” (Id. ¶ 11.) Several hours later, Plaintiff received a misbehavior report written by Ortiz in which it was alleged that Plaintiff tested positive for drugs. (See id.)

         In connection with Plaintiff's October 20, 2011 misbehavior report, Plaintiff was provided with O'Cana as his “assistant” in the upcoming disciplinary proceeding. (Id. ¶ 12.) Plaintiff asked O'Cana to view the SHU audio and video from the HBC 2 gallery from October 20, 2011, for the hours of 11:45 AM to 1:26 PM, and to report the results back to Plaintiff because Plaintiff wanted the footage as evidence at his hearing. (See id.) Despite Plaintiff's request, O'Cana never viewed the footage, nor did he provide Plaintiff with a copy of the footage. (See id.)

         Subsequently, George-who, according to Plaintiff, works in the disciplinary office with Ortiz and who approved Plaintiff's urine test-served as hearing officer at the hearing for the October 20, 2011 incident (“George Hearing”). (See Id. ¶ 13.) Plaintiff objected to George's selection as the hearing officer on these grounds. (See id.) This objection was noted, but George continued on as the presiding hearing officer. (See id.) During the proceedings, Plaintiff requested, but was denied, access to certain witnesses and materials, including the SHU audio and video footage, his urologist, his kidney specialist, the nurse administrator and the mental health unit chief, and the drug-testing manual. (See Id. ¶ 14.) Plaintiff was then found guilty and given as punishment 24 months in the SHU and 24 months' loss of all other privileges, including recommended loss of good time. (See Id. ¶ 15.) In December 2011, Plaintiff was transferred from Sing Sing to Southport, with a total of 48 months in the SHU and 48 months' loss of all other privileges, including recommended loss of good time. (Id. ¶ 16.)[1]

         3. Plaintiffs Appeal and Rehearing

         Plaintiff filed an administrative appeal challenging both proceedings and at least partially succeeded on each. (See Id. ¶ 17.) On February 3, 2012, the Director of Special Housing (the “Director”) modified the penalty imposed for Ortiz's misbehavior report and the hearing that resulted from it. (See id.) In so doing, he reduced the penalty from 24 months' time in the SHU to 18 months, but kept the remaining penalties in place. (See id.) Additionally, on February 7, 2012, the Director reversed the outcome hearing for the September 18, 2011 incident due to the absence of two witnesses and ordered a rehearing, which was conducted by Donahue and concluded on March 7, 2012. (See Id. ¶ 18.) At the rehearing on March 7, 2012 (“Donahue Hearing”), Plaintiff was found guilty of all four charges, including the frisk charge, of which he had earlier been found not guilty. (See Id. ¶ 21.) Plaintiff was then given 36 months in the SHU and 36 months' loss of all other privileges, a 12-month increase on both fronts from his earlier penalty. (See id.) According to Plaintiff, Donahue was biased in his determination, allegedly saying that he “d[id] not believe [Plaintiff], ” and also “called him a nigger.” (Id.) In response to this heightened penalty, Plaintiff filed an administrative appeal to the Director on March 17, 2012, and his SHU time was modified from 36 months back to 24. (See Id. ¶ 22.)

         4. Return to Sing Sing

         On March 20, 2014, Plaintiff was transferred back to Sing Sing. (See Id. ¶ 25.) Upon his arrival, Plaintiff was sent to the very same cell block where the initial incident with Jackson occurred. (See Id. ¶ 26.) Jackson saw Plaintiff, and said, “look who's back, Mr. Davis himself. Don't get comfortable here.” (Id.) Grant told other officers at Sing Sing that Plaintiff had assaulted Jackson previously, “because of that I.L.C. bullshit, ” and proceeded to file an allegedly false misbehavior report against Plaintiff charging him with several rule violations, which he identifies as “106.10 (direct order), 109.10 ([o]ut of place), and 104.13 (creating a disturbance).” (Id. ¶ 27.) However, this misbehavior report was dismissed.[2] (See id.) On an unspecified date, Jackson searched his cell while Plaintiff was not present, though she found no contraband. (See Id. ¶ 28.) However, Jackson later told the other inmates that Plaintiff had, “a makeshift sex toy in his cell, ” which led to harassment and threats against Plaintiff. (Id.)

         In May 2014, after being transferred to a new Block, Plaintiff was pulled out of a line, placed against the wall, and pat-frisked by Correction Officer Thor (“Thor”). (See Id. ¶ 29.) When asked why he was being searched, Thor responded that he “hope[d] [Plaintiff] [was] not gonna write [him] up for this because [he] know[s] about [Plaintiff] and Jackson.” (Id.)

         Later, in June or July 2014, Plaintiff was taken by Ortiz to the disciplinary office. (See Id. ¶ 30.) Upon his arrival, Plaintiff was “threaten[ed] and interrogated” by two unnamed Lieutenants about contraband found “in the chapel area where [P]laintiff had absolutely no access.” (Id.) During this interrogation, Plaintiff's cell was searched and he was ordered to submit to a urine test. (See id.) Lieutenant Werlau then told Plaintiff that he “kn[e]w about [Plaintiff] and Jackson, so don't be writing a bunch of shit up around here . . . you know weapons can be found in your cell at any time.” (Id.)

         Plaintiff “explained the fear and anxiety he was experiencing, ” as a result of the threats made against him upon his return to Sing Sing to his mental health providers. (Id. ¶ 31.) At “every session” between March and November 2014, Plaintiff brought these fears up, and was informed by his mental health providers that they “would relay this to the Superintendent at their meetings.” (Id.) On November 10, 2014, Plaintiff finally spoke with Superintendent Capra (“Capra”) in the visiting room. (See Id. ¶ 32.) Plaintiff told Capra about “the constant harassment, threats, and fear of being in Sing Sing if he wrote a grievance . . . or filed a [§] 1983 Complaint.” (Id.) Capra informed Plaintiff that he had been made aware of these concerns through the mental health providers, and that he would not tolerate any abuse or retaliation. (Id.) Capra further assured Plaintiff that he may file any grievances or complaints without fear of retaliation, and restored Plaintiff's previously lost privileges as a show of good faith. (See id.) Although his privileges had been restored, Plaintiff continued to fear retaliation “to the point of depression, ” which resulted in him cutting his wrist and being placed on suicide watch for two days. (Id. ¶ 33.)

         On or about August 4, 2015, roughly one month after the filing of this Action, Plaintiff was confronted by Paroline, who told Plaintiff that he “hear[d] [Plaintiff] like[d] suing people.” (Id. ¶ 36.) Paroline ordered Plaintiff to remove his belt for examination, and proceeded to cut the belt and confiscate the buckle. (See id.) Before leaving, Paroline told Plaintiff to not “fuck with him because [he] [was] not going to like it.” (Id.) After this incident, Plaintiff sought to speak with a mental health provider, but was instead escorted to the Psychiatric Satellite Unit (the “PSU”) and placed on suicide watch based on a false report by Paroline that Plaintiff “was suicidal.” (Id. ¶ 37.) Paroline also filed a misbehavior report charging plaintiff with, “181.10 (failure to comply with disciplinary disposition).” (Id. ¶ 38.) Plaintiff was ultimately found not guilty following a hearing held on August 8, 2015. (See id.) Having heard that Plaintiff had been found not guilty at his hearing, Paroline filed another misbehavior report on August 8, 2015, charging Plaintiff with the same offense as before. (See Id. ¶ 39.) The second misbehavior report was “reversed and expunged.” (Id.)

         Several months later, on October 31, 2015, Grant came to Plaintiff's cell and wrote up another allegedly false misbehavior report. (See Id. ¶ 40.) Plaintiff was charged with, “106.10 (disobeying a direct order) [and] 107.10 (obstructing visibility into the cell).” (Id.) Plaintiff was eventually found not guilty of disobeying a direct order, though he does not allege whether he was found guilty of the second offense. (See id.)

         5. Article ...

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