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taking judicial notice of plaintiff's criminal record on motion to dismiss
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08 Civ. 11091 (PAC) (KNF).
November 24, 2009
AMENDED REPORT and RECOMMENDATION
This amended report and recommendation replaces the previous report and recommendation, which was incorrectly dated December 23, 2009.
I. INTRODUCTION
In this pro se action, brought pursuant to 42 U.S.C. §§ 1983 ("§ 1983"), 1985 ("§ 1985"), and 1986 ("§ 1986"), Karl Ahlers ("Ahlers" or "the plaintiff"), who is in the custody of the Manhattan Psychiatric Center ("MPC") on Ward's Island, seeks relief against Steve Rabinowitz ("Rabinowitz"), MPC Director; Dora Deatras ("Deatras"), member, MPC, Ward D9B, "Treatment team (TTL)"; and Imogine Thompson ("Thompson") and Felicity Moe ("Moe"), MPC employees assigned to Ward D9B (collectively, "the defendants"). Ahlers alleges the defendants violated his constitutional rights to due process and equal protection, by "seizing" his "documentary and movie DVDs, CDS of classical music, his DVD player, and several storage albums for the DVDs and CDS, and depriving him of the use of his property for months at a time." In addition, the plaintiff contends the defendants "seized" and "[went] through the contents of incoming mail addressed to Plaintiff without any notice to Plaintiff of said seizure, what was being looked for, nor, in fact, of what items of incoming mail are not being delivered to Plaintiff at all, including, but not limited to First-class letters, books and other reading material belonging to Plaintiff." The plaintiff maintains that the defendants conspired to deny him his constitutional rights. Ahlers seeks monetary and injunctive relief.
Before the Court is the defendants' motion to dismiss the plaintiff's complaint, pursuant to Fed.R.Civ.P. 12(b)(6). The defendants contend dismissal is appropriate because Ahlers failed to: (1) state a § 1983 claim for relief; (2) state a conspiracy claim, under §§ 1985 and 1986; and (3) allege a violation of his rights under the Americans with Disabilities Act ("ADA"). The defendants also allege that they enjoy Eleventh Amendment immunity from liability to Ahlers or are entitled to qualified immunity, and the plaintiff is not entitled to injunctive relief. The defendants contend that their actions were performed "to assure the safety and welfare of [MPC's] residents and avoid harassment to others."
The plaintiff opposes the defendants' motion, which is analyzed below.
II. BACKGROUND AND PROCEDURAL HISTORY
In the complaint, the plaintiff alleges that, on or about November 22, 2005, he was discharged from the custody of the New York State Department of Correctional Services and placed into the custody of the New York State Office of Mental Health, at Kirby Psychiatric Center; in August 2007, he was transferred to MPC, where the incidents alleged in his complaint occurred.
Attached to his complaint, Ahlers provides an affirmation in support of his "censorship of mail" claim. According to the plaintiff, on March 20, 2008, a "Government Printing Office catalog" arrived at MPC for him. The catalog was given to "Social Worker Ohyeiha" for review, and it was never given to him. On April 28, 2008, Moe refused to give Ahlers two pieces of mail, one of which was an issue of Smithsonian magazine, and the other being an "ordinary mailorder catalog." Two weeks later, Ahlers' Smithsonian magazine was given to him. On April 29, 2008, Deatras informed Ahlers she had five catalogs and one magazine in her office for her review, although it is not clear whether these materials were addressed to the plaintiff. The plaintiff contends "mail coming to ward D9B addressed to [him] has been systematically, illegally and unreasonably withheld by defendants and had not been given to [him] since that date." On May 5, 2008, a "Heartland mail-order catalog" was sent to the plaintiff. Thompson refused to give it to him, without having Ahlers' parole officer review it. The plaintiff contends "none of the defendants herein are employees of the New York State Division of Parole but of the New York State Office of Mental Health, [and,] therefore, they have no obligation nor reason to 'just follow' any parole officer's orders." Further, according to Ahlers, the "Parole Officer has no authority without a court order, to initiate nor maintain any such action as defendants are indulging in." In June 2008, brochures from the Klamath Falls, Oregon, Chamber of Commerce, were "seized" by the defendants "for review." Thereafter, the plaintiff learned the brochures were deemed to contain "clinically inappropriate material," because photographs of "children in bathing suits" were featured. In July 2008, two books arrived at MPC for the plaintiff, which were "seized 'for review,'" and the plaintiff received materials from the Chamber of Commerce of Medford, Oregon, which included brochures. Ahlers alleges one book and three pamphlets, from the town of Medford, Oregon, were withheld from him.
Ahlers also attached to his complaint an "affirmation in support" of his claim that his DVDs and CDS were "seized" by the defendants wrongfully. In his affidavit, Ahlers notes he is a person with a disability, within the meaning of the ADA, since he requires "the assistance of two hearing aids in order to properly function." The plaintiff alleges he was granted permission to have "personal CDS and CD players, and . . . personal DVDs and DVD players," and that, through the use of his personal CD and DVD players, he is "able to watch movies and educational DVDs and understand the audio through the earphones of the DVD player." Ahlers "amassed a small [personal] library of . . . 163 DVDs and 86 CDS over a period of time."
According to Ahlers, on April 21, 2008, without prior notice or "written authorization, a group of MPC staff entered Plaintiff's assigned living quarters and seized all his DVDs, his CDS, [] the storage albums containing said DVDs and CDS," and his DVD player and its charger. Despite requesting a receipt for the items taken from him, the plaintiff alleges he did not receive one. The plaintiff contends the reason proffered for the "seizure" of his possessions was to allow MPC staff to review their contents. Ahlers recalls he was assured his possessions would be returned, once the CDS and DVDs were reviewed. Ahlers alleges a delay in processing, reviewing, and returning his CDS and DVDs occurred. On May 6, 2008, the plaintiff attended a meeting with his parole officer, Deatras, Thompson and Moe, at which he was advised his DVDs would be returned, once they were reviewed by MPC staff. The plaintiff contends the defendants discriminated against him, because he is on parole, and the "the only censorship that is being perpetrated is against those on parole." Additionally, the plaintiff notes that "defendants Deatras, Thompson and Moe are Filipino, Black and Black, and all three are foreign-born, whereas every one of those who are being denied access to their property are Caucasian and native born!"
On May 19, 2008, a "special meeting" was held with "all the clients in the ward." During the special meeting, Deatras explained that "the only thing that they were looking for was 'sexually explicit' movies or magazines," and Ahlers learned "that nudity is 'sexually explicit' in their minds." On May 28, 2008, the plaintiff attended a third meeting, with Dr. C. Herrmann, MPC Deputy Director, and they discussed the confiscation of the plaintiff's possessions. Though Dr. Herrmann agreed to "look into the matter," the plaintiff alleges he never again heard from Dr. Herrmann.
On May 30, 2008, the plaintiff met with a social worker and Deatras. At that time, 16 DVDs and the plaintiff's DVD player were returned to him; however, the DVD player's charger was retained at an "observation post and the player would have to be charged only at that location." Ahlers was provided with a "receipt" for the items that were returned to him. The plaintiff maintains that "no satisfactory explanation [existed] as [to] why the confiscation of DVDs and players of Plaintiff and others on the ward had not been carried out with all the clients on the ward." On July 28, 2008, 10 additional DVDs were returned to Ahlers, and, on August 8, 2008, 20 additional DVDs were returned to the plaintiff. According to Ahlers, receipts were provided for these returned DVDs.
Ahlers recalls that, in June 2008, an attorney, Don Graham ("Graham"), of "Mental Health Services," met with the plaintiff; Graham then met with the ward psychiatrist, and, the following day, met with Deatras. All these meetings were held to discuss the confiscation of the plaintiffs' property and whether, and when, Ahler's property would be returned to him. One day after Graham met with Deatras, the plaintiff attended a "Team" meeting, and was informed that pornographic movies were found among his collection of confiscated DVDs. On June 20, 2008, Deatras returned 15 additional DVDs to the plaintiff, and provided a receipt for them. On this same date, the plaintiff received three DVDs in the mail, and Moe "stopped to read every word of the notes on the album covers to make sure there was no 'sex explicit' [sic] or 'pornography' contained therein." On June 26, 2008, the plaintiff, and his roommate, were given lists of the DVDs that were being withheld from them.
On July 9, 2008, the plaintiff attended a meeting with "the staff [who] took his DVDs," and "Dr. Wells" informed the plaintiff that the reason he was housed on "Level A," which is the "lowest privilege level," was because pornographic material was found in some of the plaintiff's DVDs. The plaintiff alleges he never received a "receipt" on the day his possessions were confiscated, and the receipts he received, when some of his property was returned, were inadequate, because they consisted of "scribbled documents" that were unsigned by any MPC staff member. The plaintiff contends that, in a June 27, 2008 memorandum, Rabinowitz stated: "'The team feels the sexually explicit materials, including any sexual material involving children, is contrary to the SOTP (Sex Offender Treatment Program a.k.a. Mind Control Program), ward.'" According to Ahlers, the memorandum explained the plaintiff's DVDs were confiscated in order to determine whether they were "'clinically appropriate'" to be in his possession. However, the plaintiff maintains that, "even though this facility is classed as a psychiatric center and Plaintiff is a 'client' herein, he has never been placed into any treatment program by any Court, is awaiting a Court's decision on whether or not he comes under the mental health law at all, and therefore, the 'clinically inappropriate' approach is not appropriate for this circumstance[], especially when you consider that . . . not every sex offender in this facility nor even on this ward, had their DVDs seized for this purpose. . . . "
III. DISCUSSION
When considering a motion to dismiss, a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Staehr v. Hartford Fin. Servs. Group, Inc., 547 F.3d 406, 424 (2d Cir. 2008). At the pleading stage, no obligation exists to prove anything, only to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007); see also Ashcroft v. Iqbal, _ U.S. _, 129 S. Ct. 1937, 1949 (2009) (internal quotations omitted) (citing and endorsing Twombly's "plausible on its face" standard). Additionally, when assessing a motion pursuant to Fed.R.Civ.P. 12(b)(6), "consideration is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated . . . by reference, and to matters [about] which judicial notice may be taken." Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991).I. Failure to State a Violation of Due Process Rights
"In considering the rights of an institutionalized or hospitalized person, the courts look to the law developed in cases concerning persons confined in correctional institutions."Zigmund v. Foster, 106 F. Supp. 2d 352, 358 (D. Conn. 2000). While the plaintiff alleges his Fourteenth Amendment right to due process was violated by the defendants' inspection and seizure of his incoming mail, interference with the incoming non-legal mail of a person confined in an institution or hospital involves rights secured by the First Amendment. See id., Johnson v. Goord, 445 F.3d 532, 534 (2d Cir. 2006) ("Under the First Amendment, prisoners have a right to the free flow of incoming and outgoing mail.") (internal quotations and citations omitted); Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) ("Interference with legal mail implicates a prison inmate's rights to access to the courts and free speech as guaranteed by the First and Fourteenth Amendments to the U.S. Constitution"). Since the pleadings drafted by a pro se litigant, such as Ahlers, are to be construed liberally and interpreted to raise the strongest arguments they suggest, see Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the Court has analyzed Ahlers' mail claim under the First Amendment.
To assert a First Amendment violation, an inmate must allege that "prison officials 'regularly and unjustifiably' interfered with his personal mail." DeLeon v. Doe, 361 F.3d 93, 94 (2d Cir. 2004). "A prisoner's right to receive and send mail . . . may be regulated," and "[s]uch regulation is valid if it is reasonably related to legitimate penological interests." Johnson, 445 F.3d at 534 (internal citations and quotations omitted). According to the complaint, the plaintiff is housed in the MPC "Sex Offender Treatment Program" ward. Under Allen, supra, and "Federal Rule of Evidence 210, this Court can, . . . take judicial notice of [Ahlers'] criminal record." Cerasani v. SONY Corp., 991 F. Supp. 343, 353 (S.D.N.Y. 1998). The New York State Department of Correctional Services' website reveals that Ahlers was convicted for the following crimes: first-degree sodomy, first-degree sexual abuse, second-degree sodomy, and third-degree sodomy. See http://nysdocslookup.docs.state.ny.us (searching under the name "Karl Ahlers"). The actions taken by the defendants, as alleged in the complaint-confiscating reading material mailed to the plaintiff to determine whether its content is clinically appropriate, and returning a limited quantity of it to the plaintiff, once an MPC employee reviewed and determined the reading material was not inappropriate — constitute a limitation on the plaintiff's right to receive mail that is "reasonably related to legitimate [facility] interests." Johnson, 445 F.3d at 534 (internal citations and quotations omitted). The proffered "legitimate" interests of the MPC in confiscating clinically inappropriate material-assuring the "safety and welfare of residents and avoid[ing] harassment of others" — is constitutionally sufficient. See Ramirez v. Pugh, 486 F. Supp. 2d 421, 433-35 (M.D. Pa. 2007) (finding that there was a rational connection to a legitimate penological interest in banning pornographic materials in a prison facility since pornographic materials were found to "pose a threat to the security of the inmate population and also the safety of the prison staff," and could be used to "harass female staff"). Ahlers has not shown, through his complaint, that his constitutional right to receive incoming mail at MPC was violated. Consequently, he has not stated a claim for relief that is plausible.
The plaintiff's claim, based on the "seizure" of his property, is also wanting. "The Fourth Amendment protects against 'unreasonable searches and seizures.'" United States v. McCargo, 464 F.3d 192, 196 (2d Cir. 2006) (quoting U.S. Const. amend. IV). However, the administration of "places of involuntary confinement of persons who have a demonstrated proclivity for antisocial criminal, and often violent, conduct," necessitates curtailing the privacy rights of persons housed in such facilities. Hudson v. Palmer, 468 U.S. 517, 525-27, 104 S. Ct. 3194, 3200 (1984) (analyzing searches of prison cells). A person confined involuntarily in an institution or hospital does not have a reasonable expectation of privacy in the room or housing unit he occupies that entitles him to protection against searches performed in furtherance of a legitimate purpose, such as "institutional security." See generally Willis v. Artuz, 301 F.3d 65, 69 (2d Cir. 2002); see also Zigmund, 106 F. Supp. 2d at 358. Since it has already been found that prohibiting Ahlers from possessing clinically inappropriate material serves legitimate interests at MPC, including preserving the safety and welfare of MPC residents and employees, a search performed in furtherance of this purpose does not violate Ahlers' constitutional rights. Id.;see also Hudson, 468 U.S. at 525-27, 104 S. Ct. at 3200. Furthermore, to the extent Ahlers believes he is entitled to notice of a search before one occurs, the Supreme Court has determined that "[t]he uncertainty that attends random searches of cells renders these searches perhaps the most effective weapon of the [facility] administrator in the constant fight against the proliferation of . . . contraband."Id., 468 U.S. at 528, 104 S. Ct. at 3201. Thus, notice of a search is not required. Id.
Ahlers' contention, that he was deprived wrongfully of his property for "months at a time" while MPC employees were "reviewing" the CDS and DVDs seized from Ahlers, does not rise to the level of a constitutional violation. As noted above, the removal of Ahlers' CDS and DVDs from his possession was reasonably related to MPC's interest in ensuring that Ahlers did not possess clinically inappropriate material that could threaten the "safety and welfare of residents and avoid harassment of others." Thus MPC employees' (a) "seizure" of Ahlers' DVDs and CDS, (b) retention of these discs so they could be reviewed, and (c) return of certain discs, after reviewing their content and determining that the discs did not contain clinically inappropriate material, did not violate Ahlers' constitutional rights. See generally Willis, supra; see also Zigmund, 106 F. Supp. 2d at 358. Accordingly, the Court finds that no plausible claim for relief has been made by Ahlers respecting the search for, and seizure of, his CD and DVD discs or his DVD player.
II. Failure to State a Claim of Conspiracy Pursuant to 42 U.S.C. §§ 1985, 1986
Section 1985(3) prohibits conspiracies to deprive persons of either equal protection of the laws or equal privileges and immunities under the laws. The conspiracy must be motivated by "some racial or perhaps otherwise class-based, invidious discriminatory animus." Mian v. Donaldson, Lufkin Jenrette Secs. Corp, 7 F.3d 1085, 1088 (2d Cir. 1993) (internal quotations omitted) (quoting United Bhd. of Carpenter's, Local 610 v. Scott, 463 U.S. 825, 829, 103 S. Ct. 3352, 3356). The plaintiff's complaint fails to allege that the defendants deprived him of constitutional rights on account of his race or his membership in a protected class. Although the plaintiff states that his race is different from that of Deatras, Thompson and Moe, he does not allege his DVDs, CDS, and DVD player were taken from him because of his race or that the retention of his mail was race-based. Therefore, the plaintiff has failed to state a claim of conspiracy under § 1985. Since "a § 1986 claim must be predicated upon a valid § 1985 claim," it appears that the plaintiff's § 1986 claim cannot survive the defendants' motion. Mian, 7 F.3d at 1088. As a result, dismissing the plaintiff's conspiracy claim, based upon §§ 1985 and 1986, would be reasonable and appropriate.
III. Americans With Disabilities Act
With respect to an individual, ADA informs that "disability" means: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1). A person is within the ambit of subsection (C), "if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity," but subsection (C) does not "apply to impairments that are transitory and minor." 42 U.S.C. § 12102(3).
The ADA is mentioned in three identical paragraphs of the plaintiff's complaint-one for each claim-which state: "Plaintiff, a person who comes under the aegis of the Americans with Disabilities Act due to his poor hearing requiring him to be prescribed two hearing aids, has suffered and continues to suffer irreparable harm, including mental and emotional anguish and tension due to said actions of defendants Rabinowitz, Deatras, Thompson and Moe." (emphasis omitted). In the memorandum in opposition to the defendants' motion, Ahlers maintains:
A plain reading of the complaint will reveal that (a), since he is not able to participate in the daily routine of living due to his disability e.i [sic] cannot watch TV — which, in today's world, is a normal daily activity, (b) and since defendants are, in deed, subject to the ADA . . ., (c) and since he has already claimed that defendants have denied him the benefit of the normal daily activity of watching TV (and now, also, even DVDs).
Liberally construing the plaintiff's complaint, and assuming,arguendo, he intended to assert an ADA claim, the complaint contains insufficient allegations to support such a claim. The plaintiff has not alleged "poor hearing" inhibits any of his "major life activities," that he has a "record of such an impairment," that "he . . . has been subjected to an action prohibited" by the ADA because of his "poor hearing," or that his claimed disability is not "transitory and minor." 42 U.S.C. § 12102(1). In addition, the plaintiff's complaint lacks any details explaining the extent and scope of his "poor hearing." Although contentions made by the plaintiff outside the complaint, in his memorandum in opposition to the defendants' motion, include an assertion that watching television is a "normal daily activity," the plaintiff's complaint does not concern his ability to watch television — its subject matter is his inability to access his mail and the content of DVDs and CDS via his personal DVD playing device. Inasmuch as the plaintiff has failed to allege he has a "disability" within the meaning of the ADA, he has not stated a plausible ADA claim exists, on which he would be entitled to obtain relief. See, e.g., Harris v. Mills, 572 F.3d 66, 73-74 (2d Cir. 2009) ("In order for a plaintiff to establish a prima facie violation under [the ADA], [he] must demonstrate (1) that [he] is a qualified individual with a disability. . . .").
The defendants also contend their motion should be granted on the basis of qualified immunity. Since the plaintiff has not made factual allegations that state a claim(s) to relief, for constitutional violations, by the defendants, that are plausible, it is unnecessary to analyze the defendants' assertion that the doctrine of qualified immunity provides them a defense to the plaintiff's claims. See, e.g., Pearson v. Callahan, _ U.S. _, 129 S. Ct. 808 (2009) (stating that, in determining whether qualified immunity bars a suit against government officials, a court has discretion to determine the order in which it considers: (1) whether the facts demonstrate that a constitutional right was violated; and (2) whether the officials' actions violated a right that was clearly established).
IV. Injunctive Relief
To obtain a permanent injunction, a plaintiff must demonstrate "(1) actual success on the merits and (2) irreparable harm." See,e.g., Gucci America, Inc. v. Duty Free Apparel, Ltd., 286 F. Supp. 2d 284, 290 (S.D.N.Y. 2003). "[A]n injunction is an 'extraordinary remedy' which ordinarily should not be granted where a plaintiff has not proven a probability or threat of continuing or additional [infringement of his rights].'" Dolori Fabrics, Inc. v. Limited, Inc., 662 F. Supp. 1347, 1358 (S.D.N.Y. 1987) (citation omitted).
The plaintiff requests that the court order the defendants and "all other officers, agents, attorneys, and persons working in concert or participation with defendants be stayed and prohibited from taking any action including, but not limited to, harassment and bullying, relating to defendant's actions complained of in the instant proceeding." However, as discussed above, the plaintiff has not set forth, in his complaint, claims for relief that are plausible; neither has he demonstrated actual success on the merits of his claims. In such a circumstance, he is not entitled to the "extraordinary remedy" of a permanent injunction.Id.; see also Beacon Hill CBO II. Ltd. v. Beacon Hill Asset Management LLC, 249 F. Supp. 2d 268, 277 (S.D.N.Y. 2003) (denying a motion for preliminary and permanent injunctive relief because the movant "failed to demonstrate a clear likelihood of success on the merits").
IV. RECOMMENDATION
For the reasons set forth above, the defendants' motion to dismiss, Docket Entry No. 17, should be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Crotty, 500 Pearl Street, Room 735, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Crotty. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).