Opinion
86 Civ. 163 (WK)
September 27, 2000
Richard Graham, Otisville, NY, for Plaintiff.
Marc A. Konowitz, Assistant Attorney General, Office of the Attorney General of the State of New York, New York, New York, for Defendants.
MEMORANDUM ORDER
Plaintiff Richard Graham (hereinafter "plaintiff"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brought this action under 42 U.S.C. § 1983, alleging violations of his civil rights. Plaintiff avers that defendants denied him access to the prison law library and thus to the courts, failed to protect him by letting inmates who were not in "protective custody" mix with inmates like plaintiff who were in protective custody, denied him access to group religious services, to prison grievance procedures, and to vocational programs, and acted with deliberate indifference to his medical needs.
The two remaining defendants in this lawsuit are Thomas Coughlin III, former Commissioner of DOCS, and James Sullivan, former Superintendent of Sing Sing Correctional Facility ("Sing Sing"). These defendants have moved for summary judgment. For reasons that follow, we grant their motion in all respects.
BACKGROUND
We consider the facts in the light most favorable to plaintiff, resolving all ambiguities and drawing all reasonable inferences in his favor.
Plaintiff was arrested in 1975 for second degree murder. After conviction, he engaged in a great deal of litigation. First, he appealed his conviction. See People v. Graham (3d Dep't 1979) 69 A.D.2d 544, 419 N.Y.S.2d 290, judgment vacated, Graham v. New York (1980) 446 U.S. 932, on remand, People v. Graham (3d Dep't 1980) 76 A.D.2d 228, 431 N.Y.S.2d 209, judgment vacated, 458 U.S. 1101 (1982), on remand, People v. Graham (3d Dep't 1982) 90 A.D.2d 198, 457 N.Y.S.2d 962, cert. denied, 464 U.S. 896, reh'g denied, 464 U.S. 1005 (1983). He also unsuccessfully sued other correctional facilities besides Sing Sing for substantially similar reasons as alleged in the instant suit. See Graham v. Kelly (W.D.N Y Oct. 24, 1997) No. 89 CV 928E, 1997 WL 662349 (Attica C.F.; Graham's suit dismissed for failure to prosecute); Graham v. Kuhlman (S.D.N.Y. Dec. 12, 1990) No. 88 Civ. 6618, 1990 WL 210298, *1, 10 (Sullivan C.F.; Graham's "laundry list of complaints" dismissed in its entirety).
Plaintiff entered Sing Sing in the spring or summer of 1986, stayed there for three to six months, and was placed in protective custody ("PC") during that entire period. He resided in PC not because of risk of attack by other inmates, but because he claimed that a member of Sing Sing's staff was a relative or friend of his victim.
Plaintiff filed his original complaint as a class action in 1985 and his lawyer amended the complaint in 1986. On November 6, 1986, due to ongoing litigation, DOCS promulgated a new directive addressing the conditions of confinement for PC inmates. See Walker v. Coughlin (W.D.N.Y. 1995) 909 F. Supp. 872, 874-75 (discussing settlement negotiations and the new directive). In part because of this remedial change in policy, the class in the instant case was never certified, and Graham is the only remaining plaintiff. He now proceeds pro se.
Back in 1986, plaintiff argued that he wanted to proceed with claims in his original complaint not covered by the amended complaint. At that time, we noted that the amended complaint contained the "central" claims but that we would later consider how to proceed with respect to the severed claims. Graham v. Sullivan (S.D.N.Y. Dec. 3, 1986) (unpublished order). During the ensuing thirteen years, we gave plaintiff ample opportunity to name the correct parties and diligently to prosecute this action. Instead, he has continually ignored our ordered deadlines. In February 1999, he claimed that he had filed his own amended complaint years ago. Since neither his opponents nor this Court had received a copy of such papers, relying instead for years upon the filed amended complaint, and because of plaintiff's numerous misstatements, delays, and equivocations, we ruled in April 1999 that plaintiff must rely solely upon the amended complaint, and solely as against the defendants named therein. It is far too late to ask us to reconsider that decision.
Plaintiff's opposition to the instant motion is entirely conclusory except in two respects: first, he lists alleged tortfeasors whom he would like to add as defendants; second, he requests appointment of counsel. But, as noted above, we will not permit the addition of new parties at this late date. Moreover, plaintiff requested a lawyer back in 1992 but did not receive one, and it is too late to submit a new request. In any event, a lawyer could not help plaintiff at this stage, given the deficiency of his pleadings and the insufficiency of the facts brought out in his deposition and in documentary discovery.
In 1992, we directed the Attorney General to take plaintiff's deposition on behalf of defendants, in order to "develop the grounds of his complaint." Graham v. Sullivan (S.D.N.Y. June 23, 1992) 1992 WL 163175, *1. Plaintiff was duly deposed in July 1992, but defendants lost the transcript. In July 1995, we ordered defendants to re-depose plaintiff, but both sides requested extensions. After protracted procedural wrangling, the deposition eventually took place on January 29, 1999.
After denying motions for failure to prosecute, we then ordered the disclosure of plaintiff's letters to the defendants within the possession, custody, or control of defendants, Sing Sing, and DOCS. Graham v. Sullivan (S.D.N.Y. Nov. 5, 1999) 1999 WL 1006181; Graham v. Sullivan (S.D.N.Y. May 23, 2000) 2000 WL 684279. The government's files reveal that plaintiff never reported to Coughlin or Sullivan about threats to his safety, health, or religious practice while in protective custody at Sing Sing. His deposition and amended complaint make the following allegations: Security — Failure to Protect Plaintiff alleges that the PC unit is on the same gallery (i.e., cell block) as the Special Housing Unit ("SHU"), which houses inmates who have violated prison rules. He avers that this juxtaposition jeopardizes the safety of PC unit inmates. (Am. Compl. ¶¶ 22-24). However, the PC unit is on the top level of the gallery, while the SHU is on the bottom level. (Graham Dep. 103). Although plaintiff and other PC prisoners did not mix in with other inmates while in the prison yard (Dep. 28-30), occasionally plaintiff was in the same area as general population inmates on the gallery. (Dep. 33, 44, 46). On other occasions, plaintiff allegedly became exposed to SHU inmates due to cell doors remaining open in both the PC and the SHU areas at the same time. (Dep. 49).
Plaintiff speculates that a friend or relative of his victim caused the doors to be left open, thereby letting the different populations commingle. Alternatively, he suggests that someone negligently left the doors open. (Dep. 49). He names assorted corrections officers who could have left the doors open, but he does not identify any specific individual who actually did so (Dep. 51-52 (referring to Dep. 37)).
His complaint alleges that Sing Sing policy condones the mixing of PC and SHU inmates.
However, he does not deny defendants' assertion, made a decade ago, that prison policy commands that SHU inmates always be kept segregated, twenty-four hours a day. (See Letter to this Court from Gayle Sullivan, Asst. Att'y General, May 29, 1990, at 2.)
Plaintiff claims that he was repeatedly attacked by other inmates, who threw urine at him on two occasions and feces at him once; and that someone also threw hot coffee at his face. (Dep. 47-48). However, as noted above, there is no evidence that he ever told Coughlin or Sullivan about his safety concerns while in protective custody at Sing Sing.
Access to Law Library Plaintiff alleges that he was denied access to Sing Sing's law library and its staff while he resided at that institution. (Am. Compl. ¶¶ 19-21; Dep. 35). In fact, as an inmate in the PC unit, prison policy prohibited plaintiff from visiting the law library. He says that as a result, he could not file papers with various courts, and that he missed litigation deadlines. He admits, however, that he could receive some books from the law library, which books were brought to his cell. (Dep. 38, 42).
At deposition, plaintiff listed citations to the eight cases in which he claims his access to the courts was curtailed. Three of those cases were not plaintiff's; rather, they involved other criminal defendants with the last name "Graham." The other five cases, cited above, all pre-dated plaintiff's incarceration at Sing Sing. Moreover, the reported decisions indicate that counsel represented plaintiff at each and every one of his state court appeals, and that he obtained two reversals from the United States Supreme Court. His other reported federal civil rights suits complain of conditions in PC units of other prisons and were filed after he left Sing Sing.
Religious Services Plaintiff alleges that in the PC unit at Sing Sing, he was denied the opportunity to attend Jewish religious services or to see a rabbi, while inmates in the general population were not so denied. (Am. Compl. ¶¶ 25-26; Dep. 62-63). Also, correction officers would not allow him to pray outside of his cell, and some officers would interrupt him while he prayed in his cell and laugh at him. Plaintiff maintains that he complained to defendants about such interference, whereas in fact defendants received no such complaints.
Other Claims Plaintiff says that he gave grievance slips to various correction officers for processing, who sometimes tore up the slips. However, he could not name any of the offending officers. (Dep. 74, 82-84).
Plaintiff further alleges that vocational training and jobs were not offered to PC inmates but rather only to general population inmates. (Am. Compl. ¶¶ 30-31; Dep. 92-94). Consequently, he could not earn enough money to buy brand-name health items such as soap and shampoo. (Dep. 99).
Finally, plaintiff claims restrictions and delays regarding access to medical treatment. (Am. Compl. ¶¶ 32-33). No evidence exists, however, that plaintiff notified defendants of his medical conditions or of Sing Sing's alleged failure to address them.
DISCUSSION
Even a pro se litigant must come forward with evidence and not rely merely upon bald assertions to overcome a motion for summary judgment. Carey v. Crescenzi (2d Cir. 1991) 923 F.2d 18, 21. The record shows that all of plaintiff's claims are deficient and must be dismissed.
1. Personal Involvement of Defendants
As a prerequisite to recovery under § 1983, plaintiff must demonstrate defendants' personal involvement in the alleged constitutional violations. Plaintiff has made a viable demonstration for his claims regarding access to the library, to religious services, and to work programs; however, he has not made such a showing regarding his failure to protect or his medical causes of action.
The Second Circuit has outlined five ways in which a supervisory official may be personally involved in and thus liable for a § 1983 violation:
(1) the defendant participated directly in the alleged constitutional violation; (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a custom or policy, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.
Colon v. Coughlin (2d Cir. 1995) 58 F.3d 865, 873 (citation omitted).
"The bare fact that [a defendant] occupies a high position in the New York prison hierarchy is insufficient to sustain [a] claim." Id. at 874 (citations omitted).
Plaintiff sufficiently substantiates that the prison had a "policy or custom" of denying PC inmates access to the library, to religious services and a rabbi, and to work programs. Defendants permitted the continuance of these customs. Therefore, we do not dismiss these causes of action on this ground.
Plaintiff, however, has not met his burden to establish sufficient involvement of defendants in his failure to protect claim or in his medical claim, and thus we dismiss those claims. The Eighth Amendment imposes a duty on prison officials to protect prisoners from violence at the hands of other prisoners. To prevail, a plaintiff must show that defendants acted with a sufficiently culpable state of mind, namely, "deliberate indifference." Farmer v. Brennan (1994) 511 U.S. 825, 114 S.Ct. 1970, 1977. "A prison official cannot be found liable. . . unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." 114 S.Ct. at 1979.
In situations where corrections officers have deliberately left cells doors open in order to leave a prisoner vulnerable to vicious attack, the courts rightly have expressed outrage. See, e.g., Fischl v. Armitage (2d Cir. 1997) 128 F.3d 50. In contrast, in the case at bar, plaintiff has failed to demonstrate a policy or custom of mixing the PC and SHU populations. He does not allege defendants' gross negligence in managing subordinates. Moreover, he has manifestly failed to show that the named defendants knew of the specific attacks against him. He could do so only by showing that the defendants were put on notice that he was attacked and likely would be assaulted again. See, e.g., Murchison v. Keane (S.D.N.Y. Apr. 25, 2000) No. 94 Civ. 466, 2000 WL 489698, *5-6; Majid v. Wilhelm (S.D.N.Y. Aug. 24, 2000) No. 97 Civ. 4371, 2000 WL 1206713, *6. If a corrections officer ripped up plaintiff's letters so that defendants never received the complaints, then plaintiff cannot surmount this burden.
As noted above, no letters from plaintiff to defendants complaining of security threats while he resided in protective custody have emerged in discovery. Therefore, since defendants had no notice of the problem, they cannot be held liable.
Similarly, there is no proof whatsoever that defendants permitted medical personnel to perpetuate a custom of substandard care. Moreover, plaintiff did not alert defendants to any health problems. Hence, we also dismiss his claim regarding "deliberate indifference" to his medical needs.
2. Access to Law Library
To prove a violation of his right to access the courts, an inmate must show actual injury. He must show that the alleged shortcomings in the provision of library and legal services actually hindered his efforts to vindicate a non-frivolous legal claim. Lewis v. Casey (1996) 518 U.S. 343, 349-52.
Plaintiff has not met this basic requirement. By his own admissions, he successfully presented all of his claims to the courts. Perhaps most telling, his lawsuits all pre-dated or post-dated his stay at Sing Sing. Hence, we grant summary judgment to the defendants on this issue.
3. Religious Services
Plaintiff avers that he was denied the right to participate in religious services. For reasons set forth below, we grant defendants summary judgment on this issue.
While prisoners have a constitutional right to attend congregate religious services, this right is not absolute. Salahuddin v. Jones (2d Cir.) 992 F.2d 447, 449, cert. denied, 510 U.S. 902 (1993); Bellamy v. McMickens (S.D.N.Y. 1988) 692 F. Supp. 205; Cole v. Artuz (S.D.N.Y. Oct. 28, 1999) No. 93 Civ. 5981, 1999 WL 983876, *3. When a prison regulation impinges on an inmate's constitutional rights, the regulation is valid if it reasonably relates to legitimate penological interests. Turner v. Safley (1987) 482 U.S. 78, 89. We must consider the following factors in determining the reasonableness of the regulation at issue:
(1) There must be a valid, rational connection between the prison regulation and the legitimate government interest put forward to justify it; (2) whether there are alternative means for inmates to exercise the right; (3) the impact the accommodation of the right will have on the guards and other inmates; and (4) the absence of ready alternatives is evidence of the reasonableness of a prison regulation.
Id. at 89-90.
The evaluation of what is an appropriate and reasonable penological objective is left to the discretion of the administrative officers operating the prison, [who are] accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to. . . maintain institutional security.
Cole, 1999 WL 983876, at *3 (citing O'Lone v. Estate of Shaabazz (1986) 482 U.S. 342, 349; Bell v. Wolfish (1979) 441 U.S. 520, 547) (internal quotation marks omitted).
Prohibiting a particular inmate's attendance at services because he resides in administrative segregation does not violate his First Amendment rights if the restriction so serves a valid penological purpose. See, e.g., Bellamy, 692 F. Supp. at 214-15 (citing Turner). Here, an obvious security justification existed for Sing Sing's policy of not allowing PC inmates — and plaintiff in particular — to attend religious services in the general prison population. Further, the prison had a valid reason to restrict plaintiff's movements even within the PC unit. Graham v. Kuhlman, 1990 WL 210298, at *2 ("by its nature, [PC] confinement requires greater constraints on inmates' freedom").
Even the theoretical alternative of group meetings within the PC unit would have jeopardized plaintiff's safety by exposing him to many different people in a relatively unmonitored and unstructured environment. Griffin v. Coughlin (N.D.N.Y. 1990) 743 F. Supp. 1006, 1025-26 n. 17 (Ban on congregate religious services for PC inmates at Clinton C.F. justified on security and administrative rationales. "Correctional officials cannot structure worship groups. Inmates pretty much can pursue the service they want. . . . [This] takes away from management the ability to ensure [inmates'] safety. . ." (quoting a government expert; brackets in Court's decision)). Moreover, we have no hint that the prison officers had sufficient manpower for — or the inmates sufficient interest in — such meetings (especially since plaintiff demanded Jewish services, and inmates are typically in PC only for limited time periods). Graham v. Kuhlman, 1990 WL 210298, at *6; cf. Bellamy, 692 F. Supp. at 214 (reasonable to deny prisoner access to law library during period of time during which prison did not have the manpower to personally escort him as required).
Plaintiff also claims that he did not have access to a rabbi in the PC unit. However, the First Amendment does not compel that the prison provide inmates with the spiritual counselors of their choice. The State need merely afford each prisoner a reasonable opportunity to worship. Johnson v. Moore (9th Cir. 1991) 948 F.2d 517, 520. In Johnson, the inmate was not provided with a Unitarian Universalist minister. The Ninth Circuit held that the inmate did not show that his lack of access to a minister deprived him of a reasonable opportunity to exercise his faith.
Additionally, unlike the plaintiffs in Griffin, the instant plaintiff does not allege that he lacked privacy while speaking to the provided religious advisor, praying, reading scriptures, and otherwise practicing religion in his cell. Cf. Griffin, 743 F. Supp. at 1025-29 (to pass constitutional muster, any prisoner meetings with religious advisors must be "truly private"). Finally, plaintiff did not report the brief interruptions attributable to individual officers to defendants. Consequently, we grant defendants summary judgment on this claim. 4. Access to Grievance Procedures Because inmates do not have a constitutional right to prison grievance procedures, we dismiss this claim.
The federal regulations providing for an administrative remedy procedure do not in and of themselves create a liberty interest in access to that procedure. When the claim underlying the administrative grievance involves a constitutional right, the prisoner's right to petition the government for redress is the right of access to the courts, which is not compromised by the prison's refusal to entertain his grievance.
Flick v. Alba (8th Cir. 1991) 932 F.2d 728, 729 (citing Azeez v. DeRobertis (N.D.Ill. 1982) 568 F. Supp. 8, 10).
Certain state laws and the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), require exhaustion of all "available" prison grievance procedures before a lawsuit may be filed. But, first, plaintiff does not allege that such exhaustion requirements prevented him from pursuing any lawsuit. (Indeed, his suits brought to our attention all pre-date the PLRA. See, e.g., Salahuddin v. Mead (2d Cir. 1999) 174 F.3d 271, 274 (PLRA exhaustion requirement is not retroactive; PLRA became effective on April 26, 1996).) Moreover, if prison officials forcibly stop an inmate from pursuing his administrative remedies, surely such remedies are not "available," as that term is invoked in the statutes, and the judiciary would not hold the inmate to the exhaustion requirement.
In the instant context, the occasional failure of prison personnel to provide plaintiff with grievance forms does not constitute a cognizable claim under § 1983. Cf. Davis v. Sancegraw (E.D. Mo. 1993) 850 F. Supp. 809, 813 (citation omitted) (arriving at same conclusion). Hence, we grant summary judgment to defendants on this claim.
5. Access to Vocational Programs
"There simply is no right to any particular job while in prison, or to prison employment at all." Graham v. Kuhlman, 1990 WL 210298, at *4 (citing Gill v. Mooney (2d Cir. 1987) 824 F.2d 192, 194); New York Correctional Law § 171(1); see also Griffin, 743 F. Supp. at 1017 (citations omitted) (no Eighth Amendment right to prison work and educational activities).
Here, plaintiff complains that jobs were offered to inmates in general population but not to inmates in the PC unit. He says that he suffered damage in that he could not earn enough money to buy himself non-essential items. These complaints do not amount to a legitimate § 1983 claim.
Reduction of wages, however, does not constitute cruel and unusual punishment under the Eighth Amendment when "the inmate does not allege that he was deprived of minimal necessities as a result." Garrido v. Coughlin (S.D.N.Y. 1989) 716 F. Supp. 98, 103 (citation omitted). Here, plaintiff has merely alleged that he did not have enough money to buy his own preferred brand of shampoo and soap. Furthermore, a liberty interest may be implicated when a prisoner is exposed to an "atypical and significant" deprivation. Sandin v. Connor (1995) 515 U.S. 472, 486. But, the lack of a prison job for a brief period of about six months certainly does not meet that standard.
CONCLUSION
For the foregoing reasons, we GRANT defendants' motion for summary judgment and DISMISS the amended complaint with prejudice.
SO ORDERED.