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Jenkins v. Cordero

United States District Court, S.D. New York

January 17, 2018

GERARD JENKINS, Plaintiff,
v.
CORRECTION OFFICER J. CORDERO, CORRECTION OFFICER MAYFIELD, HEARING OFFICER ASSISTANT DEPUTY SUPERINTENDENT OF PROGRAMS J. WOOD, Defendants.

          OPINION AND ORDER

          Vincent L. Briccetti United States District Judge.

         Plaintiff Gerard Jenkins, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging (i) correction officers Cordero and Mayfield violated his Eighth Amendment rights when they used excessive force against plaintiff while he was incarcerated at Sing Sing Correctional Facility (“Sing Sing”), and (ii) defendant Deputy Superintendent of Programs Wood violated plaintiff's Fourteenth Amendment right to due process by improperly disciplining him on allegedly false charges.

         Now pending is defendants' motion to dismiss the complaint pursuant to Rule 12(b)(6). (Doc. #16).

         For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART.

         The Court has subject matter jurisdiction under 28 U.S.C. § 1331.

         BACKGROUND

         For purposes of ruling on a motion to dismiss, the Court accepts all factual allegations of the complaint as true, and draws all reasonable inferences in plaintiff's favor, as summarized below.

         On August 31, 2015, plaintiff's wife visited him at Sing Sing. After the visit ended, as plaintiff walked towards the inmate frisk area, Cordero allegedly attacked plaintiff from behind. Cordero then dragged plaintiff to the frisk area, where defendant Mayfield, responding to the disturbance, allegedly also assaulted plaintiff.

         Cordero filed a misbehavior report against plaintiff, charging him with (i) assaulting staff, (ii) creating a disturbance, (iii) violent conduct, (iv) making threats, (v) ignoring a direct order, and (vi) violating visiting procedures.

         Defendant Wood oversaw plaintiff's disciplinary hearing. On October 1, 2015, Wood found plaintiff guilty of three of the six charges. He imposed discipline consisting of (i) sixty days in the special housing unit (“SHU”), in addition to the thirty-one days plaintiff spent there prehearing, (ii) loss of phone privileges while in the SHU, and (iii) loss of sixty days of good time credit.

         Plaintiff alleges that while confined in the SHU on September 2, 2015, he submitted a grievance related to the assault. When he did not receive a response, on October 5, 2015, plaintiff submitted a second grievance. He claims he placed both grievances “in the black box in the SHU, ” after which he “no longer had control over those grievances.” (Compl. Ex. B).

         On November 10, 2015, plaintiff was released from the SHU earlier than anticipated, having spent at total of seventy-two days there.

         The same day, plaintiff asked the prison grievance representative about the lack of response to his grievances.[1] Although the grievance representative initially said he recalled filing the grievances on plaintiff's behalf and would provide plaintiff with the file number, the next day he informed plaintiff the grievances had not been filed.

         On November 24, 2015, plaintiff spoke with the grievance supervisor, who told plaintiff the grievances had not been received, and at that point it was too late to file them. The same day, plaintiff filed another grievance, complaining about the “procedures for collecting or picking up mail addressed to grievance” (Compl. Ex. B), and requesting that he be allowed to resubmit his unfiled grievances.

         Plaintiff appealed the results of his disciplinary hearing. On February 13, 2017, the director of inmate disciplinary programs reversed Wood's ...


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