United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge.
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
pending is defendants' motion to dismiss the complaint
pursuant to Rule 12(b)(6). (Doc. #16).
reasons set forth below, the motion is GRANTED IN PART and
DENIED IN PART.
Court has subject matter jurisdiction under 28 U.S.C. §
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
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.
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.
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.
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).
November 10, 2015, plaintiff was released from the SHU
earlier than anticipated, having spent at total of
seventy-two days there.
same day, plaintiff asked the prison grievance representative
about the lack of response to his grievances. 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.
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.
appealed the results of his disciplinary hearing. On February
13, 2017, the director of inmate disciplinary programs
reversed Wood's ...