Summary
dismissing Eighth Amendment claim because the plaintiff chose to go on the hunger strike and the symptoms did not rise to the level of a “sufficiently serious” condition, i.e., “a condition of urgency, one that may produce death, degeneration, or extreme pain” and were to be expected by someone who does not eat
Summary of this case from Sherman v. DoeOpinion
04 Civ. 10202 (TPG).
March 30, 2006
OPINION
Pro se plaintiff Shawn Green alleges that the defendants violated his First, Eighth and Fourteenth Amendment rights when he was a prisoner at the Green Haven Correctional Facility. Green has submitted an amended complaint that the court will treat as a motion to amend the complaint. This motion is granted.
The defendants have moved to dismiss the original complaint. The court will treat the motion to dismiss as a motion to dismiss the amended complaint. The motion to dismiss the amended complaint is granted and the case is dismissed.
THE COMPLAINT
Plaintiff, currently a prisoner at Attica Correctional Facility, filed this suit against various guards, nurses, and officers at Green Haven Correctional Facility for violations of his constitutional rights while he was an inmate there. The following facts are taken from both the original complaint and the proposed amended complaint. References to "the complaint" will be understood to refer to claims in either or both of these documents.
Retaliation
On March 24, 2004 eleven inmates, including Green, began a hunger strike in the Green Haven Special Housing Unit. Green alleges that defendant W.E. Phillips, a Green Haven employee, retaliated against him for exercising his constitutional rights. Green claims that Phillips ordered defendant T.H. Kiernan, a guard, to make a misbehavior report against plaintiff and that this was in retaliation for going on the hunger strike and for "submitting grievances, complaints, etc." The nature of the grievances and complaints is not described. Green alleges that after Phillips ordered Kiernan to do so, Kiernan issued the misbehavior report charging that plaintiff refused a direct order and created a "visibility obstruction". Green also claims that Kiernan had his own retaliatory motives for issuing the report, since Green had filed a grievance against him and his coworkers a few weeks before the hunger strike began. Green does not describe the grievance that Green allegedly filed against Kiernan.
Green next alleges that defendant W. Russett, a disciplinary proceeding hearing officer, misconstrued evidence to find plaintiff guilty of the charges in the aforementioned misbehavior report:
Defendant W. Russett, disciplinary proceeding hearing officer, was aware defendant Phillips gave order for report and misconstrued testimonial evidence contradictive to report allegations the kiernan seen sign, at least, the previous day and order had not been directed toward plaintiff. Subsequently, plaintiff was found guilty of charges.
Green next alleges that he appealed and that defendant G. Guiney affirmed Russett. Green does not allege anything about the findings or decision of either Russett or Guiney.
Green next alleges that defendant L. Goidel refused to file numerous grievances that plaintiff submitted regarding the alleged retaliation and conspiracy described above. Green alleges that as a consequence, he was prevented from suing because he could not satisfy the administrative exhaustion requirement in the Prison Litigation Reform Act, 42 U.S.C § 1997e(a). Green further claims that defendant T.G. Eagen, who appears to be a supervisor at Green Haven, was notified of Goidel's refusal and would not remedy it despite knowledge of an "unconstitutional custom at Green Haven". Of course, despite these alleged hindrances, Green has filed this action.
Green alleges that the actions of Phillips, Kiernan, Russett, Guiney, and Goidel were pursuant to a conspiracy to deprive him of his constitutional rights. He also appears to allege that the conduct of the hearing officers and supervisors was related to the conspiracy as well.
Deliberate Indifference to Plaintiff's Medical Problems
Green next alleges that certain defendants were deliberately indifferent to a serious medical need. Plaintiff was diagnosed with diabetes at Green Haven in November 2003. Plaintiff makes allegations against D. Huttel and F. Sarles, whom he does not identify beyond stating that they were employees at Green Haven. Specifically, plaintiff alleges that Huttel and Sarles, "knew plaintiff were a diabetic prior to strike, yet disregarded an excessive risk to his health and safety once strike begun."
Green also alleges that defendants J. Tardio and D. Osselman, nurses at Green Haven, while giving Green his daily insulin injection, were informed of his request for medical attention due to the strike but "disregarded the excessive risk to his health and safety."
Discriminatory and Unequal Treatment
Finally, plaintiff alleges a number of acts that he describes as lacking a rational basis. He argues that these allegations demonstrate violations of the rights granted to him under the equal protection clause of the Fourteenth Amendment:
• He alleges that Huttel and Sarles did not contact the medical department after learning of the hunger strike, allegedly in violation of prison rules.
• He alleges that he was not given any medical attention after informing Tardio and Osselman that he had not eaten in seventy-two hours, in violation of prison rules. He further alleges that Osselman gave medical attention to another inmate during the strike. He also alleges that he suffered from various physical ailments during the strike.
• He again alleges his claims that Goidel intentionally withheld his grievances from being processed.
• He alleges that Phillips "selectively ordered disciplinary rules be imposed against plaintiff (and others similarly situated participating in hunger strike) with intentions of punishment for the exercise of constitutional rights and maliciously to injure" and that Phillips conspired with Kiernan to do so.
• Finally, he alleges that Phillips would not active a hunger strike team in violation of prison rules.Relief
Plaintiff seeks declaratory and injunctive relief as well as damages against each defendant. Specifically, he seeks a declaratory judgment that defendants be demoted or removed from their posts and that Kiernan's misbehavior report be reversed. Green also seeks an injunction requiring the installation of grievance boxes in Green Haven and a logging system for the grievances filed in those boxes.
DISCUSSION
A court must dismiss a case pursuant to Rule 12(b)(6) where a plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Where a lawsuit alleges violations of constitutional rights, however, a plaintiff may not rely on conclusory statements that his rights were violated. Even under the liberal reading that should be given to a pro se plaintiff's complaint, that complaint must still "allege sufficient facts indicating a deprivation of constitutional rights." Locicero v. O'Connell, No. 04 Civ. 7708, 2006 U.S. Dist. LEXIS 8958, at *9 (S.D.N.Y. Mar. 7, 2006).
Retaliation
In order for a prisoner to properly plead a claim of retaliation, a plaintiff must allege that the conduct that was the basis for the retaliation was "constitutionally protected" and that the protected conduct was a "substantial or motivating factor" in the retaliatory action. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Since retaliation claims can be easily fabricated, a plaintiff asserting such a claim bears a heightened burden of proof and must plead the claim with particularity.See Brown v. Middaugh, 41 F. Supp. 2d 172, 191 (N.D.N.Y. 1999); Harris v. Keane, 962 F. Supp. 397, 405 (S.D.N.Y. 1997). When a prisoner files a grievance against prison officials, he is engaging in constitutionally protected conduct. Graham, 89 F.3d at 80. As to the hunger strike, in the present case there has been no attempt to define the extent to which a prison hunger strike may be constitutionally protected. Nonetheless, the court will assume for the sake of argument that prison personnel do not have a right to retaliate against a prisoner who has been on a hunger strike, in the sense that retaliation is used in the cases.
Plaintiff asserts that the misbehavior report against him was in retaliation for his participation in the hunger strike and for filing grievances and complaints. The complaint must be read as claiming that the accusations in the misbehavior report were fabricated and false.
According to the cases, plaintiff is expected to allege in his complaint facts which can reasonably be expected to be within his knowledge and which give substance to the claim of retaliation by means of a concocted misbehavior report.
Plaintiff asserts that there was retaliation by Phillips in part because of plaintiff filing grievances and complaints. But plaintiff does not allege whom these complaints and grievances were against (except that one was against Kiernan), what they were about, or why they would motivate Phillips to direct Kiernan to fabricate a misbehavior charge against plaintiff.
As to the hunger strike, plaintiff does not provide any details of the strike, such as what is was about, how long it lasted, or why Phillips and/or Kiernan would wish to retaliate against plaintiff because of the strike.
Green claims that the misbehavior report charged him with refusing a direct order and with a visibility obstruction. Central to his case is that the charges were not made in good faith but to retaliate for plaintiff's exercise of his rights. Thus the requirement of particularity in pleading means that plaintiff should describe the misbehavior charges in some reasonable detail and should plead in the complaint a definite denial of the truth of those charges. Valid charges of misbehavior are inconsistent, to say the least, with the idea of allegations motivated by a desire to retaliate against plaintiff for the exercise of his rights.
Plaintiff has failed to plead anything approaching what is required. He does not say what the misbehavior report asserted about the disobeyed order — who gave it or what the order was. There is no meaningful description of what was charged by way of "visibility obstruction." It is true that plaintiff alleges that there was some evidence in his favor at the hearing. But this does not constitute a sufficient pleading of a description of what the misbehavior report charged and a definite assertion that those charges were false.
Plaintiff claims that the disciplinary hearing officer, Russett, and the appeal officer, Guiney, were all part of the conspiracy to retaliate against plaintiff. As to the hearing, as already noted, plaintiff alleges that there was some evidence in his favor. Plaintiff does not allege that there was no evidence against him. So presumably there was. Plaintiff makes no mention of such evidence. Plaintiff does not allege anything about Russett's findings other than that he found plaintiff guilty of the charges in the misbehavior report. Plaintiff does not allege that he was punished as a result or what punishment he received.
As to Guiney, plaintiff merely states that Guiney "affirm plaintiff appeal after reviewing disciplinary proceeding." This allegation, of course, does not explain what Guiney found, or why it was incorrect, if it was incorrect.
The basic theory of the complaint is that Phillips initiated a conspiracy, which produced a concocted misbehavior charge against plaintiff, made by Kiernan, followed by a baseless finding of guilt by the hearing officer, Russett, ending in another baseless finding by the appeal officer, Guiney. Presumably, if this occurred, evidence against plaintiff would have been manufactured along the way. It is on its face highly unlikely that such things occurred. Plaintiff has not provided even a modicum of particulars to lend credence to his unusual theory.
Plaintiff therefore fails to "plead with some particularity how an action was in retaliation for the plaintiff having filed grievances." Brown, 41 F. Supp. 2d at 191. Under these circumstances, the retaliation claim against these defendants must be dismissed. Harris, 962 F. Supp. at 405 (dismissing a retaliation claim where plaintiff "failed to allege whether the particular Defendants even knew about Plaintiff's grievances and, beyond any conclusory statements, why there would be any retaliation.").
There is some question of whether plaintiff has exhausted his administrative remedies for the medical indifference claims as required by the PLRA. Because these claims ultimately fail as pleaded, the court will assume for the sake of deciding this motion that the grievances described in the complaint included claims regarding plaintiff's medical care and that he thus satisfied the exhaustion requirement.
Plaintiff alleges that he was not given proper medical attention during the hunger strike as was necessary given his diabetes, and asserts a violation of the Eighth Amendment.
Plaintiff can assert a claim under the Eighth Amendment if he can plead facts that would demonstrate that the defendants were deliberately indifferent to his serious medical needs. Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Deliberate indifference has both objective and subjective components. First, a plaintiff must prove that the alleged deprivation was, in objective terms, "sufficiently serious". Id. The "sufficiently serious" standard contemplates "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway v. Coughlin, 37 F.2d 62, 66 (2d Cir. 1994) (quotation omitted). The plaintiff must then prove that the defendant was had a sufficiently culpable state of mind. Id. "[A] prison official does not act in a deliberately indifferent manner unless that 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.'" Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Plaintiff alleges that Huttel and Sarles "knew plaintiff were a diabetic prior to strike, yet disregarded an excessive risk to his health and safety" once the strike began. But the allegation is insufficient since it fails to assert that Huttel and Sarles actually damaged plaintiff's health.
Plaintiff makes two allegations against Tardio and Osselman, two nurses at Green Haven. First, plaintiff makes the conclusory allegation that while giving plaintiff his daily insulin injection, Tardio and Osselman were told of his request for medical attention due to the hunger strike but "disregarded the excessive risk to his health and safety." Plaintiff's second allegation against Tardio and Osselman is that they refused to weigh him after he informed them that he hadn't eaten in seventy-two hours and asked to be weighed, and that he was "never given any medical attention." Plaintiff alleges that this was in violation of health policies related to hunger strikes. As a result of this alleged indifference, plaintiff claims to have suffered "headaches, sweating, confusion, disorientation, weakness, hypotension and tremors during strike."
It should be noted that plaintiff chose to go on the hunger strike. The symptoms plaintiff allegedly suffered are to be expected by someone who does not eat for three days. Second, these symptoms do not rise to the level of a "sufficiently serious" condition, i.e., "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway, 37 F.2d at 66. Moreover, regarding the subjective portion of an Eighth Amendment claim, plaintiff does not plead any facts that would demonstrate that Tardio or Osselman subjectively believed there was a substantial risk of harm to plaintiff.
The court also notes that plaintiff's claim that he was "never given any medical attention" would appear to be in conflict with his other allegation that he received a daily insulin injection for his diabetes from Tardio and Osselman.
Accordingly, the Eighth Amendment claims against Huttel, Sarles, Tardio and Osselman are dismissed. Denial of Access to Courts
A word should be said about the allegations against Goidel and Eagen. Plaintiff alleges that Goidel refused to file numerous grievances regarding the alleged retaliation, conspiracy and discrimination already discussed. Plaintiff also alleges that Eagen is liable under a theory of "supervisor liability" because he was notified of the situation and would not remedy it, despite "learning of [an] unconstitutional custom" of such refusals at Green Haven. As a result of these actions, plaintiff alleges, he was denied access to the courts.
To state a claim for denial of access to the courts under § 1983, an inmate must demonstrate that a defendant's "deliberate and malicious interference actually impeded his access to the court or prejudiced an existing action." Cancel v. Goord, No. 00 Civ. 2042, 2001 U.S. Dist. LEXIS at *12 (S.D.N.Y. Mar. 29, 2001). Here, plaintiff has been heard in this court, so the claim against Goidel and Eagen is dismissed.
Fourteenth Amendment
Finally, Plaintiff has asserted claims against all defendants, alleging disparate treatment in violation of the Equal Protection Clause of the Fourteenth Amendment. There is simply no substance to these claims and they do not require discussion.
CONCLUSION
Plaintiff's motion to amend the complaint is granted. For the reasons explained above, the case is dismissed pursuant to Rule 12(b)(6).SO ORDERED.