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Smart v. Gifford

United States District Court, S.D. New York

January 12, 2018

PAMELA SMART, Plaintiff,
CORRECTIONS OFFICER M. GIFFORD, Bedford Hills Correctional Facility, JOSEPH JOSEPH, Deputy Superintendent of Programs, Bedford Hills Correctional Facility, DONALD SELSKY, Director of Disciplinary and Special Housing, Department of Corrections and Community Supervision, LIEUTENANT J. VALLO, Bedford Hills Correctional Facility, SUPERINTENDENT SABRINA KAPLAN, Bedford Hills Correctional Facility, T. FITZGERALD, Deputy Superintendent of Security, Bedford Hills Correctional Facility, JOHN AND JANE DOE #1-100, JOHN AND JANE DOE ENTITIES #1-10, Defendants.

          Dmitriy Shakhnevich, Esq. The Law Firm of Dmitriy Shakhnevich Brooklyn, NY Counsel for Plaintiff

          Barbara K. Hathaway, Esq., Steven N. Schulman, Esq., John E. Knudsen, Esq. New York State Office of the Attorney General New York, NY Counsel for Defendants

          OPINION & ORDER

          KENNETH M. KARAS, District Judge

         Plaintiff Pamela Smart (“Plaintiff”) filed the instant Action pursuant to 42 U.S.C. § 1983, against Correction Officer M. Gifford (“Gifford”); Deputy Superintendent Joseph Joseph (“Joseph”); Director of Disciplinary and Special Housing, Department of Corrections and Community Supervision (“DOCCS”) Donald Selsky (“Selsky”); Lieutenant J. Vallo (“Vallo”); Superintendent Sabrina Kaplan (“Kaplan”); Deputy Superintendent T. Fitzgerald (“Fitzgerald”); John and Jane Doe #1-100; and John and Jane Doe Entities #1-10 (collectively “Defendants”).[1]Plaintiff alleges that Defendants violated her rights under the Eighth and Fourteenth Amendments of the United States Constitution by refusing to allow Plaintiff an impartial hearing officer during her disciplinary hearings, failing to provide Plaintiff with a written disposition of her initial hearing, subjecting her to the Special Housing Unit (“SHU”) as a result of a hearing based on insufficient evidence, and subjecting her to cruel and unusual conditions of confinement while in SHU. (See generally Am. Compl. (Dkt. No. 29).) Before the Court is Defendants' Motion To Dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion”). (Dkt. No. 49.) For the following reasons, Defendants' Motion is granted.

         I. Background

         A. Factual History

         The following facts are drawn from Plaintiff's Amended Complaint and are taken as true for the purpose of resolving the instant Motion. Plaintiff is an inmate at Bedford Hills Correctional Facility (“Bedford Hills”), where, as of the time of the Amended Complaint, she has been incarcerated for 21 years. (Am. Compl. ¶ 1.) At approximately 6:30 P.M. on November 15, 2012, Gifford searched Plaintiff's cell, allegedly without cause, wherein he located and confiscated a plastic, “non-serrated cake utensil.” (Id. ¶ 25.) During this search, Gifford inspected the utensil twice, discussed the utensil with Plaintiff, and twice returned the utensil to Plaintiff's locker. (See Id. ¶ 26.) However, after conferring with an unidentified officer and an unidentified supervisor, Gifford decided to confiscate the utensil. (See id.) Plaintiff alleges that, prior to the confiscation, she possessed this utensil at Bedford Hills for 17 years, and also that it “could not be used to cut, [but] only . . . to slice through soft cakes, ” though it is not alleged whether Gifford was specifically made aware of this during the search. (Id. ¶ 37.)

         The following day, Gifford wrote a misbehavior report (the “Report”) alleging Plaintiff had violated disciplinary rules 113.01 and 113.23, possession of a weapon and possession of contraband, respectively. (See Id. ¶ 28.) Upon the filing of the Report on November 16, 2012, Plaintiff was placed in the SHU at Bedford Hills. (See Id. ¶ 25.) Prior to Plaintiff's hearing regarding the Report, she allegedly received a note from Fitzgerald, who informed Plaintiff that “he will not even think about releasing Plaintiff from [SHU].” (Id. ¶ 29.) Plaintiff claims that Fitzgerald had previously made it known to Plaintiff that he “held a personal dislike for [her].” (Id. ¶ 31.) Plaintiff's hearing was then held at Bedford Hills before Joseph on November 21, 2012. (See Id. ¶ 29.) Plaintiff makes no allegations as to what took place at this hearing, but alleges that on November 27, 2012, Joseph found Plaintiff guilty of both charges and sentenced her to six months in SHU. (See id.)

         Following the hearing, Plaintiff alleges that she did not receive a written copy of the November 27, 2012 disposition until some point in January 2013. (See Id. ¶ 32.) Plaintiff wrote to both Fitzgerald and Kaplan regarding this issue, to no avail. (See id.) Ultimately, Plaintiff did receive a copy of the written disposition and thereafter filed an appeal, which led to Selsky vacating the prior disposition and ordering a new hearing. (See Id. ¶ 34.) At this time, Plaintiff had served more than 60 days in SHU. (See id.)

         Selsky's decision led to the commencement of a new hearing before Vallo on January 15, 2013. (See Id. ¶ 35.) During this hearing, Plaintiff argued that she had received the utensil many years ago, had not made any alterations to its non-serrated nature, had kept the utensil in plain view ever since, and had no issues in keeping the utensil in her cell during four searches that took place prior to the November 15, 2012 search. (See Id. ¶ 36.) Though the utensil itself was not entered into evidence, Vallo reviewed a black and white photograph of it. (See Id. ¶ 37.) Plaintiff alleges this photograph “effectively altered the item's appearance to look menacing and violent.” (Id.)

         On January 22, 2013, Vallo found Plaintiff guilty of violating disciplinary rule 113.01- the weapons charge-though not guilty of violating rule 113.23-the contraband charge. (See Id. ¶ 35.) Plaintiff was sentenced to 90 days in SHU, though she was credited for time served prior to the January 22, 2013 disposition. (See Id. Ex. A at unnumbered 2.)

         During her time in SHU, Plaintiff was confined in her cell for 23 hours each day, with one hour allotted for physical activity. (See Id. ¶ 38.) Plaintiff alleges that this physical activity was limited to a caged area where, during winter, “the ground filled with snow and ice without being cleaned.” (Id.) She could not access the phone, nor participate in any church programs, bible study, or continue as a teacher's aide at Bedford Hills. (See Id. ¶¶ 38, 41.) Plaintiff was unable to sleep or tell time, as the lights in her area of SHU, “would never shut off, ” (id. ¶ 39), and was placed in a position in SHU that deprived her of human contact “almost entirely, ” (id. ¶ 40). Plaintiff was allowed three showers per week, regardless of her “hygienic state or menstrual cycle, ” (id.), and was “taunted and harassed” by unnamed officers who called her “Buffy the Vampire Slayer” and “Jason, ” (id. ¶ 42). As a result, Plaintiff now seeks an Order directing Defendants to “vacate . . . and otherwise eliminate” the Report, charges, convictions, hearing determinations, and punishments from Plaintiff's records maintained by DOCCS and Bedford Hills, as well as unspecified “[c]ompensatory damages.” (Id. at unnumbered 13.)

         In February 2013, Plaintiff and Plaintiff's then-counsel filed an administrative appeal of the January 22, 2013 hearing. (See Id. ¶ 43.)[2] After a review of the record, the disposition and penalty issued at the January 22, 2013 hearing was affirmed. (See id.) Plaintiff thereafter brought an Article 78 proceeding in the New York Supreme Court, Albany County on April 26, 2013. (See Id. ¶ 23(3).) This case was transferred to the Appellate Division, Third Department, pursuant to CPLR § 7804(g) in August 2013. (See id.) Plaintiff, by counsel, submitted a brief in support of her petition on April 3, 2014, arguing that substantial evidence did not support the disposition, that Plaintiff was prejudiced by Vallo's impartiality, that Plaintiff was unable to be present and comment on all evidence used at the hearing, and that the sentence of 90 days in SHU was outrageous and excessive. (Decl. of Steven N. Schulman, Esq., in Supp. of Mot. To Dismiss (“Schulman Decl.”) Ex. D (“Smart Article 78 Brief”) at 8-25, Smart v. Fischer, 994 N.Y.S.2d 735 (N.Y.App.Div. 2014); see also Schulman Decl. Ex. B (“Smart Article 78 Petition”) at ¶¶ 47-73.)[3] The Appellate Division affirmed the disposition and punishment issued at the disciplinary hearing, finding that there was “substantial evidence to support the determination of guilt, ” and determined that the “remaining claims, to the extent that they are preserved for . . . review, have been examined and found to lack merit.” Smart v. Fischer, 994 N.Y.S.2d 735, 736 (N.Y.App.Div. 2014).

         B. Procedural History

         Plaintiff filed her Complaint on November 13, 2015. (See Compl. (Dkt. No. 2).) At a conference on June 22, 2016, the Court informed Plaintiff that she may amend her Complaint by July 22, 2016. (See Dkt. (Minute Entry June 22, 2016).) After an extension was granted, (see Order (Dkt. No. 27)), Plaintiff filed her Amended Complaint on July 26, 2016, alleging violations of the Eighth and Fourteenth Amendments, and naming Joseph, Kaplan, Gifford, Selsky, Fitzgerald, and Vallo as Defendants, as well as several John and Jane Doe individuals and entities. (See Am. Compl.)

         On December 19, 2016, the Court issued an Order allowing for all briefing regarding Defendants' Motion To Dismiss (the “Motion”) to be filed simultaneously with the Court. (See Mot. Scheduling Order (Dkt. No. 40).) All served Defendants thereafter served Plaintiff with their Motion To Dismiss Plaintiff's Amended Complaint on February 14, 2017, (see Am. Notice of Defs.' Mot. To Dismiss (“Defs.' Mot.”) 1 (Dkt. No. 49)), and their supporting papers, (see Dkt. Nos. 50-51). Plaintiff served her opposition papers on April 17, 2017, (see Dkt. Nos. 53- 55), and Defendants served their Reply on May 1, 2017, (see Dkt. No. 52). To date, all named Defendants except for Fitzgerald have been served and join in the Motion. On April 5, 2017, the New York Attorney General filed a Suggestion of Death as to Fitzgerald, indicating that Fitzgerald had passed away on April 1, 2015, several months before this action had commenced. (See Suggestion of Death (Dkt. No. 47).)

         II. Discussion

         A. Standard of Review

         The Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks omitted). Rather, a complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint, ” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face, ” id. at 570, if a plaintiff has not “nudged [his] claim[] across the line from conceivable to plausible, the[] complaint must be dismissed, ” id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But 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.'” (second alteration in original) (citation omitted) (quoting Fed.R.Civ.P. 8(a)(2))); id. at 678-79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).

         “[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint, ” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and “draw[] all reasonable inferences in favor of the plaintiff, ” Daniel v. T&M Prot. Res., Inc., 992 F.Supp.2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted); see also Wang v. Palmisano, 157 F.Supp.3d 306, 317 (S.D.N.Y. 2016) (same).

         B. ...

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