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holding that allegations that the plaintiff was provided, on a daily basis, food that was cold and, on a few occasions, food that was spoiled were insufficient to satisfy the objective prong of an Eighth Amendment claim
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04 Civ. 2438 (LAK) (GWG).
January 21, 2005
REPORT AND RECOMMENDATION
George Lunney, currently an inmate at the Collins Correctional Facility, has brought this suit pro se under 42 U.S.C. § 1983 against three employees of the Sing Sing Correctional Facility ("Sing Sing"), where Lunney was previously housed. Lunney alleges that defendants Lieutenant Brureton, Donald Selsky, and Brian Fischer violated his Due Process rights by improperly conducting a disciplinary hearing which resulted in his confinement in the Special Housing Unit ("SHU") of Sing Sing. He further alleges that Brureton and Fischer were deliberately indifferent to inhumane conditions of confinement in the SHU in violation of his Eighth Amendment rights, that he was the victim of an assault, and that he was retaliated against for filing grievances with respect to conditions in the SHU in violation of his rights under the First Amendment. Defendants have moved to dismiss Lunney's complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, the defendants' motion should be granted in part and denied in part.
This name is spelled "Brereton" in the defendants' submissions.
I. BACKGROUND
A. Facts
For the purposes of deciding this motion, the Court assumes that the facts alleged in Lunney's complaint and his memorandum of law are true.See, e.g., Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) ("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least where those allegations are consistent with the allegations in the complaint.");accord Torrico v. IBM Corp., 213 F. Supp. 2d 390, 400 n. 4 (S.D.N.Y. 2002). In addition, Lunney's complaint may be deemed "to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference, as well as . . . documents that [Lunney] either possessed or knew about and upon which [he] relied in bringing the suit." Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir. 2000) (internal citations omitted).
On May 21, 2002, Lunney returned to his cell following a "medical shower" to find Correction Officer Hadzovic leaving the cell. Complaint, filed March 29, 2004 (Docket #2) ("Compl."), ¶ 1. Hadzovic informed Lunney that he had just searched his cell. Id. After conducting a pat frisk on Lunney, Hadzovic reentered the cell and came out with a box of spaghetti. Id. Hadzovic announced that he would confiscate the box, which appeared to be altered, and locked Lunney in his cell. Id.
Approximately 45 minutes after Hadzovic left, Correction Sergeant Guadagno came to Lunney's cell with two other corrections officers. Id. ¶ 2. Guadagno informed Lunney that a "shank type weapon" was discovered in the confiscated spaghetti box. Id. Lunney asserted that the weapon was not his and that he had merely purchased the spaghetti from the commissary. Id. Nonetheless, he was escorted to the SHU to await disciplinary action. Id.
Lunney received a "Tier III" misbehavior report on May 22, 2002. Id. ¶ 3; Inmate Misbehavior Report (reproduced as Ex. A to Motion to Dismiss, filed June 10, 2004 (Docket #15) ("Motion to Dismiss")). Following a disciplinary hearing on June 13, 2002, Lunney was found guilty of possession of a weapon and sentenced to nine months' confinement in the SHU. Compl. ¶ 3. Lunney filed an administrative appeal with Donald Selsky, the Director of Special Housing for the New York State Department of Correctional Services, who affirmed the disposition on August 22, 2002. Id.
Lunney then filed a petition pursuant to Article 78 of the New York Civil Practice Law and Rules in the New York State Supreme Court, Albany County. Id. ¶ 4. On September 16, 2002, Justice Thomas J. McNamara issued an order to show cause directing Selsky to respond to the petition. Id. On October 3, 2002, Selsky rescinded the disciplinary determination and ordered a rehearing on the ground that Lunney had not been given adequate assistance in preparing his defense. Id. Lunney subsequently withdrew his Article 78 petition. Id. ¶ 5.
The rehearing commenced on October 15, 2002. Id. ¶ 6; Disciplinary Hearing Transcript (reproduced as Ex. B to Motion to Dismiss) ("Transcript"). During the hearing, a dispute arose between the hearing officer, Correction Lieutenant Brureton, and Lunney. Compl. ¶ 6; Transcript at 29-37. Lunney requested permission to leave the hearing, Brureton granted him permission to do so, and Lunney was escorted out. Compl. ¶ 6, Transcript at 36-37. Lunney was again convicted for possessing a weapon and sentenced to nine months in the SHU with a corresponding loss of all privileges. Compl. ¶ 6; Transcript at 59.
Lunney subsequently filed a request for review with Brian Fischer, the Superintendent of Sing Sing. Compl. ¶ 7. The disciplinary disposition was affirmed by First Deputy Superintendent Paul Kikendall. Id. An appeal to the Commissioner of the New York State Department of Correctional Services followed. Id. ¶ 8. In the appeal, Lunney argued that he had not been provided with a copy of the hearing disposition and that Selsky had no authority to order a new disciplinary hearing once the action in state court had been filed. Id. The Acting Director of Special Housing denied the appeal on November 7, 2002, although he reduced Lunney's sentence from nine to six months in the SHU. Id.; Review of Superintendent's Hearing, (reproduced as Ex. D to Motion to Dismiss) ("Hearing Review").
Lunney filed a second Article 78 petition on November 19, 2002 with respect to the rehearing. Article 78 Petition, dated November 19, 2002 (reproduced as Ex. E to Motion to Dismiss). On August 13, 2003, Justice Edward Sheridan of the Albany County Supreme Court dismissed the misbehavior report and ordered the Department of Correctional Services to expunge all references to the incident from Lunney's institutional record. Decision, Order and Judgment, dated August 13, 2003 (reproduced as Ex. D to Combined Affirmation and Memorandum of Law in Opposition to Defendants' Motion for Dismissal, filed July 6, 2004 (Docket #18) ("Pl. Opp.")). Justice Sheridan concluded that the failure to provide Lunney with a copy of the hearing disposition was a violation of Due Process and that Selsky had no authority to order the rehearing once Lunney filed an Article 78 petition in state court. Id.
Lunney was confined to the SHU for six months, from May 21, 2002 until November 21, 2002. Compl. ¶ 10. During this period, Lunney filed a number of grievances alleging, inter alia, cold, spoiled, or poorly prepared food, an inadequate law library, insufficient reading materials, inadequate laundry services, lack of medical attention, and harassment by SHU staff. Id. ¶ 16. In his grievances, Lunney also alleged that he was criticized and threatened for filing grievances related to prison conditions by SHU staff, particularly by Brian Fischer. Id. ¶¶ 17, 19. On one occasion, Lunney asserts that he was physically assaulted by prison guards in retaliation for complaining about conditions in his cell. Memorandum of Law, dated June 28, 2004 (annexed to Pl. Opp.) ("Pl. Mem."), at 9-10.
B. Procedural History
The complaint in this action was filed March 29, 2004. See Compl. In his complaint, Lunney alleges that his Due Process rights were violated by two "faulty disciplinary hearings." Id. at 7 (¶ 1). The first violation occurred when Selsky convened a new disciplinary hearing while an Article 78 review of the first hearing was pending, and Lunney alleges that his Due Process rights were violated a second time when Brureton failed to provide a timely written disposition of the second hearing and neither Selsky nor Fischer corrected the error. See Pl. Mem. at 18. He also alleges that he was subject to "inhumane" conditions of confinement in the SHU of Sing Sing, id. at 17, including the service of cold, spoiled, and improperly prepared food; inadequate laundry services; inadequate law library services; and inadequate reading material. Compl. ¶ 16, Pl. Mem. at 6-9. He also alleges that he was assaulted, Pl. Mem. at 9-10, and that he was retaliated against for filing grievances with respect to conditions in the SHU, Compl. ¶¶ 17, 19; id. at 7 (¶ 2); Pl. Mem. at 18, in violation of his rights under the First Amendment. Lunney seeks $10 million in punitive and compensatory damages. Compl. at 8.
Defendants filed a motion to dismiss on June 10, 2004 arguing that Lunney failed to state any constitutional claims. Defendants' Memorandum of Law in Support of Their Motion to Dismiss, filed June 10, 2004 (Docket #16) ("Def. Mem"), at 2. Defendants also argue sovereign immunity under the Eleventh Amendment, qualified immunity, and the lack of personal involvement of the defendants. Id. Lunney filed opposition papers on July 6, 2004. See Pl. Mem. Defendants thereafter submitted a reply memorandum of law. See Defendants' Reply Memorandum of Law in Further Support of Their Motion to Dismiss, filed August 4, 2004 (Docket #19) ("Def. Reply"). This Court also received a letter from Lunney dated December 18, 2004, which attached copies of several of Lunney's grievances and responses to the grievances. See Letter from George Lunney, dated December 18, 2004.
C. Law Governing a Motion to Dismiss
In resolving a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 216 (2d Cir. 2004);Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the 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). In making this determination, complaints drafted by pro se plaintiffs are held "'to less stringent standards than formal pleadings drafted by lawyers,'" Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)), and they "should be interpreted 'to raise the strongest arguments that they suggest,'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
II. DISCUSSION
The defendants have moved to dismiss the complaint on the following grounds: (1) Lunney has failed to allege that defendants Fischer and Brureton subjected him to inhumane conditions of confinement, or knew of and disregarded an excessive risk to Lunney's health and safety in violation of his Eighth Amendment rights; (2) Lunney failed to state a claim under the First Amendment because he does not allege adverse action in retaliation for his grievances; (3) Lunney has failed to state a Due Process claim with respect to his second disciplinary hearing; (4) because Lunney cannot show personal involvement; all claims should be dismissed as to Selsky; the First and Eighth Amendment claims should be dismissed as to Brureton; and the Due Process claim should be dismissed as to Fischer; (5) all defendants are entitled to qualified immunity; and (6) the defendants have sovereign immunity in their official capacities under the Eleventh Amendment. Def. Mem. at 6-13.
In his responsive papers, Lunney clarified that he was raising a Due Process claim against Selsky, Due Process and Eighth Amendment claims against Brureton, and Due Process, First and Eighth Amendment claims against Fischer. Affirmation of George Lunney, dated June 28, 2004 (included as first pages to Pl. Opp.) ("Affirm."), ¶ 3(d); Pl. Mem. at 17. These grounds are discussed below to the extent necessary for disposition of the defendants' motion.
A. Sovereign Immunity
The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. While the language of the Eleventh Amendment is not literally applicable to suits brought by citizens of the state being sued, the Supreme Court has long held that it bars such suits as well. See, e.g., Employees of Dep't of Pub. Health and Welfare v. Dep't of Pub. Health and Welfare, 411 U.S. 279, 280 (1973). Thus, "[i]t is clear . . . that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment." Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (citations omitted). The same rule applies to suits for money damages against individual employees of the State named in their official capacities. See, e.g., Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003). The Supreme Court has also explicitly held that 42 U.S.C. § 1983 is not a statute that abrogates the States' sovereign immunity. See Quern v. Jordan, 440 U.S. 332, 340-45 (1979). A finding of sovereign immunity under the Eleventh Amendment deprives a federal court of jurisdiction.See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000) (citations omitted); Atl. Healthcare Benefits Trust v. Googins, 2 F.3d 1, 4 (2d Cir. 1993) (citations omitted), cert. denied, 510 U.S. 1043 (1994).
Lunney's complaint names the three defendants in both their individual and official capacities. Although the Eleventh Amendment does not bar suit against the defendants in their individual capacities, it does bar this suit insofar as it is brought against the defendants in their official capacities.
B. Analysis of Lunney's Claims Under 42 U.S.C. § 1983
Lunney has brought this action under 42 U.S.C. § 1983. See Compl. at 1. In order to assert a claim under section 1983, a plaintiff must show that he has been deprived of a right secured by the Constitution or federal law by a defendant acting under the color of state law. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 does not grant any substantive rights, but rather "provides a procedure for redress for the deprivation of rights established elsewhere," such as in the Constitution or federal statutes. See Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240 (1994).
Because the defendants do not dispute that their actions were under the color of state law, the only issue presented is whether Lunney has alleged any violations of a constitutional right. Lunney has presented three different claims in which he alleges: (1) violations of the Eighth Amendment with respect to the conditions of his confinement; (2) that he was the victim of retaliation in violation of the First Amendment; and (3) Due Process violations under the Fourteenth Amendment based on the conduct of his disciplinary hearing and his confinement in the SHU. Each claim is discussed separately.
1. Eighth Amendment Claims
The Supreme Court has held that "[t]he Constitution 'does not mandate comfortable prisons,' but neither does it permit inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). The Eighth Amendment imposes an obligation on prison officials to provide "humane conditions of confinement" including "adequate food, clothing, shelter, and medical care." Id. To establish a violation of the Eighth Amendment on the basis of inhumane prison conditions, a plaintiff must show that the deprivation is sufficiently serious as to result in a denial of "'the minimal civilized measure of life's necessities,'" Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quotingRhodes, 452 U.S. at 347), and that the prison officials acted with "a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (citation omitted). In the context of conditions of confinement, the requisite mental state is "deliberate indifference."Wilson, 501 U.S. at 302-03.
Lunney's Eighth Amendment claims relate to five distinct areas: food, laundry services, physical assault, regular library services and law library services. Each is discussed below.
a. Cold, spoiled and improperly prepared food
i. Merits of the Claim. Lunney maintains that he was served food that was "cold, spoiled and poorly prepared" "on a near daily basis" during his detention in the SHU. Pl. Mem. at 6. Lunney asserts that he and other inmates regularly refused the meals — or portions of meals — that "were clearly spoiled and or poorly prepared." Id. at 7. On one occasion, Lunney describes how he and other SHU inmates became ill after a meal of chili and rice, began vomiting violently, and required treatment by medical staff. Id. Lunney and other inmates filed formal grievances with the Inmate Grievance Committee and sent informal letters to the Director of Inmate Nutritional Services and the State Commission of Correction, but the authorities found no problems with the food service. Id. at 6. As a result of regularly having to refuse meals, Lunney states that he suffered "weight loss, muscle atrophy, lethargy and the inability to maintain mental focus." Id. at 7.
Under Eighth Amendment case law, prisoners are entitled to "nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it." Robles v. Coughlin, 725 F.2d 12, 14 (2d Cir. 1983) (per curiam) (citation omitted) (claim that food was purposely contaminated with dust, rocks, glass, and human waste sufficient to withstand dismissal of § 1983 complaint); see also Griffin v. Smith, 493 F. Supp. 129, 131 (W.D.N.Y. 1980) (allegation of "[u]nsanitary food utensils, including cigarette burns and hair on food trays" sufficient to sustain an Eighth Amendment claim); Murphy v. Wheaton, 381 F. Supp. 1252, 1261 (N.D. Ill. 1974) ("spoiled, rotted and foul" food served in a wagon used to dispose garbage indicates "existence of unsanitary conditions which transcend mere unpleasantness").
Insofar as Lunney alleges that the food in the prison was merely cold, or that spoiled food was only served on a few occasions, he fails to state a cause of action. See Waring v. Meachum, 175 F. Supp. 2d 230, 238 (D. Conn. 2001) (Report and Recommendation) ("The provision of cold food is not, by itself, a violation of the Eighth Amendment as long as it is nutritionally adequate and is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it.") (citation and quotation omitted); see also Hutto v. Finney, 437 U.S. 678, 683, 686 (1978) (1000 calorie per day diet of "grue," a substance "created by mashing meat, potatoes, oleo, syrup, vegetables, eggs, and seasoning into a paste" and baking it, "might be tolerable for a few days and intolerably cruel for weeks or months").
Here, however, Lunney alleges that his meals were regularly spoiled and/or improperly prepared on "numerous occasions." Pl. Mem. at 7. Thus, eating the meals caused him to get sick and not eating them caused him to suffer the effects of malnutrition. See id. Because Lunney's allegations are sufficient to support the inference that prison officials were aware of the risk to his health and safety created by the condition of the food served but disregarded the excessive risk of harm, his allegations are sufficient to state an Eighth Amendment claim.
ii. Qualified Immunity. To hold an individual defendant liable, however, it is not sufficient merely to state a constitutional claim. Prison officials are entitled to qualified immunity if their actions either "did not violate clearly established law," or "it was objectively reasonable for the defendant[s] to believe that [their] action[s] did not violate such law." Anderson, 317 F.3d at 197 (citations and internal quotations omitted). Prison officials performing discretionary functions thus "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Ford v. McGinnis, 352 F.3d 582, 596 (2d Cir. 2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether defendants are entitled to qualified immunity, the court must decide whether a constitutional right was violated, whether the law clearly established the right alleged to have been violated, and whether a reasonable person under the same circumstances would have understood that his conduct was unlawful. See Hanrahan v. Doling, 331 F.3d 93, 98 (2d Cir. 2003) (per curiam) (citing Vega v. Miller, 273 F.3d 460, 466 (2d Cir. 2001)).
A qualified immunity defense may be asserted as part of a motion under Fed.R.Civ.P. 12(b)(6) if it is based on facts appearing on the face of the complaint, though defendants asserting the defense at this stage face a "formidable hurdle" given that all inferences must be drawn in plaintiff's favor. McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004). Here, defendants have argued the applicability of the qualified immunity defense only in the most general terms. See Def. Mem. at 13-15; Def. Reply at 9-10. Significantly, they make no specific argument with respect to whether the case law regarding serving spoiled food was "clearly established," stating only that "[t]here is no clearly established constitutional right to perfectly prepared meals." Def. Reply at 10. Lunney, of course, is not asserting a right to "perfectly prepared meals" and thus defendants have not asserted a qualified immunity defense with respect to these allegations.
iii. Personal Involvement. Lunney seeks to sue only Brian Fischer and Lieutenant Brureton for Eighth Amendment violations. See Affirm. ¶ 3(d); Pl. Mem. at 17. An individual defendant's liability under 42 U.S.C. § 1983 is predicated on his or her personal involvement in the constitutional deprivation. See, e.g., Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). A plaintiff may prove personal involvement by supervisory defendants by showing one of the following:
(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 policy or custom, (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, 58 F.3d 865, 873 (2d Cir. 1995) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Fischer does not contest that he meets the Colon test with respect to the conditions in the SHU and thus he remains a proper defendant on this claim. With respect to Lieutenant Brureton, however, Lunney makes no allegation that Brureton had any role in creating the conditions of confinement in the SHU or that his involvement satisfied any of the other Colon factors. Accordingly, Brureton cannot remain as a defendant as to this or any other claim relating to conditions at the SHU.
b. Laundry services
Lunney alleges that the laundry services in the SHU were inadequate. In his memorandum of law, Lunney describes how the staff would collect inmates' soiled laundry and place it outside the "Officer's In Charge station" but never send it to the laundry. Pl. Mem. at 9. The day staff would not advise later shifts that the clothing had not been sent to be cleaned and the laundry would be returned to the inmates unwashed. Id. Furthermore, the soiled laundry of all the inmates would be mixed together and the inmates would have to sort through the piles of clothing to look for their own clothes. Id.
Prisoners are entitled to "reasonably adequate sanitation" and "personal hygiene" under the Eighth Amendment, particularly over long periods of time. Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989). Courts have held that these rights encompass the right to adequate laundry services. Id. (denial of laundry service for five months, followed by service in which laundry was returned wet and dirty sufficiently serious under the circumstances to state a claim); Divers v. Dep't of Corr., 921 F.2d 191, 194 (8th Cir. 1990) ("inmates are . . . entitled to adequate laundry facilities") (citation omitted).
There is no Eighth Amendment violation, however, in instances where inmates are provided the opportunity and the supplies to wash their own clothes. Green v. Ferrell, 801 F.2d 765, 771 (5th Cir. 1986) (no constitutional violation where inmates were permitted to wash their clothes in sinks and were provided with laundry detergent); Benjamin v. Fraser, 161 F. Supp. 2d 151, 178-79 (S.D.N.Y. 2001) (availability of sinks and laundry detergent or bar soap sufficient under the Eighth Amendment), aff'd in part and vacated in part, 343 F.3d 35 (2d Cir. 2003). Thus Lunney's mere allegation that his clothes were returned to him without being cleaned on various occasions does not state an Eighth Amendment claim as to inadequate laundry services.
c. Assault
Lunney asserts that he was routinely subject to threats and harassment by the SHU staff — an allegation discussed below as a First Amendment retaliation claim — but he also describes a specific incident of assault which is more properly addressed here. Lunney alleges that, three days after entering the SHU on May 21, 2002, he complained that his cell lacked, inter alia, a toothbrush, toothpaste, and a working sink. Pl. Mem. at 9. He says that after "shouting to" an officer regarding the missing items, two unnamed officers came to the cell and told him to "shut the fuck up or we [are] coming in there and you will not like the results." Id. at 10. Lunney claims that one officer became increasingly hostile, and eventually the officers ordered the cell open, "began punching [him] in the head and body," and put him in a choke hold. Id.
Defendants argue that Lunney's claim for assault should be dismissed for failure to exhaust administrative remedies. Def. Reply at 4. It is not necessary to reach this argument, however, as Lunney's claim cannot proceed in its current form because he has not alleged that any of the three named defendants were personally involved in the assault under any of the prongs of the Colon test. Accordingly, the assault claim must be dismissed against the existing defendants. Obviously, Lunney would be free to file an amended complaint that names the officers involved, though he is cautioned that he should do so only if he meets the exhaustion requirements of 42 U.S.C. § 1997e(a) or has a basis for being relieved of the obligation to meet those requirements.
d. Inadequate library services
Lunney alleges that library services in the SHU were inadequate. He asserts that in spite of inmate grievance complaints, the general library cart was not "properly stocked" as it was "void of magazines, newspapers and periodicals." Pl. Mem. at 7. These allegations, however, fail to state a claim under the Eighth Amendment because magazines, newspapers and periodicals are not considered one of life's "basic necessities" within the meaning of the Eighth Amendment. See, e.g., Loe v. Wilkinson, 604 F. Supp. 130, 136 (M.D. Pa. 1984) (diminished access to the general library while prisoner was in administrative detention not an Eighth Amendment violation); see also May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (prisoner's First Amendment rights were not violated when his confinement to the special housing unit prevented him from using the general prison library); cf. Boyd v. Anderson, 265 F. Supp. 2d 952, 966 (N.D. Ind. 2003) (no equal protection violation where prisoners confined to detention unit could not use general prison library).
e. Inadequate law library services
Lunney's final claim under the Eighth Amendment relates to the inadequacy of the "mini law library" in Sing Sing's SHU. Pl. Mem. at 8. Lunney alleges that Sing Sing is under a consent degree issued by a court in the Southern District of New York and is obligated to stock the mini law library within SHU with legal books and materials. Id. He contends that these materials were often missing and had to be ordered from the prison's main law library. Id. He alleges that there were "extensive delays" in getting books from the main law library and, as a result, he was unable to do legal research with respect to the Article 78 petition he filed in the New York State Supreme Court in a timely fashion and was forced to seek extensions from the court. Id.
The adequacy of law library services does not implicate the Eighth Amendment, however, but rather the right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 828 (1977) (establishing that "the fundamental constitutional right of access to the courts requires prison authorities" to provide adequate law libraries or adequate assistance with filing legal papers from a person trained in the law); Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir. 2004). This right is grounded "in the constitutional guarantees of equal protection and due process." Bourdon, 386 F.3d at 92 (citations omitted). A prisoner, however, must allege more than inadequate facilities to state a constitutional claim. Rather, the prisoner "must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim." Lewis v. Casey, 518 U.S. 343, 351 (1996). The examples in Lewis used to demonstrate a cognizable injury — for example, that a complaint was dismissed because the plaintiff failed "to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known" or was unable to file a complaint at all because he was "so stymied by inadequacies of the law library" — all show a real and prejudicial effect arising from the denial of legal material. Id.
Here, by contrast, Lunney alleges no such denial. Although he alleges delays in conducting research for his lawsuits in the State Supreme Court and the need to request extensions on deadlines, Pl. Mem. at 8, he does not allege that he was not granted the extensions or suffered any harm from having to request extensions. We note that "if an inmate experienced delays in pursuing a civil claim, but files acceptable legal pleadings within court deadlines, he cannot claim that he was prejudiced by shortcomings in a prison facility's law library, because he has sustained no relevant actual injury." Benjamin v. Kerik, 102 F. Supp. 2d 157, 164 (S.D.N.Y. 2000) (citing Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996)), aff'd Benjamin v. Fraser, 264 F.3d 175 (2d Cir. 2001). The fact that Lunney not only successfully filed his claims in the State Supreme Court but even won a favorable judgment obviously cannot support any inference of injury resulting from inadequate access to the law library.See id. at 166-67 (dismissing claims of four inmates complaining of an inadequate law library because each inmate was able to properly file a claim in court); Amaker v. Coombe, 1998 WL 637178, at *1 (S.D.N.Y. Sept. 16, 1998) ("[T]he very fact that the plaintiff has been able to proceed on this motion (as well as the numerous other motions filed in this case) tends to indicate that he has not been prejudiced by any lack of access to the law library."). Accordingly, Lunney has not stated a constitutional violation of his right of access to the courts under the Fifth and Fourteenth Amendments.
2. First Amendment Claim of Retaliation
Lunney states that he filed "numerous grievance complaints" regarding the conditions of his confinement in the SHU as well as the Inmate Grievance Committee's perceived lack of proper attention to inmate complaints. Compl. ¶ 16. Lunney claims that he "was often criticized and threatened by S.H.U. staff and defendant Fischer" in retaliation for filing these grievances. Id. ¶ 17. Specifically, Lunney asserts that he was "threatened with physical violence on several occasions by S.H.U. staff for his writing of grievances," id. ¶ 19, that he was denied recreation and showers by staff who knew of his complaints, Pl. Mem. at 11, and that Fischer threatened to transfer him to Attica for writing grievances, Compl. ¶ 19. As mentioned above, Lunney also describes being assaulted by two corrections officers after complaining about the conditions in his cell, an assault he did not report "fearing for his life and not wanting to receive another ticket." Pl. Mem. at 10.
It is well established that the First Amendment protects prisoners from retaliation for engaging in protected speech, including submitting grievances regarding prison conditions. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) ("[R]etaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983.") (citing Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988)). To establish a prima facie case of retaliation, an inmate must show: 1) that his speech or conduct was constitutionally protected; 2) that the defendant took adverse action against the plaintiff; and 3) a causal connection exists between the protected speech and the adverse action. Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (citing Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002)). However, only those acts that are likely to "'chill a person of ordinary firmness from continuing to engage' in activity protected by the First Amendment" will support a claim of retaliation. Rivera v. Goord, 253 F. Supp. 2d 735, 749 (S.D.N.Y. 2003) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir. 1999)); accord Davidson v. Chestnut, 193 F.3d 144, 150 (2d Cir. 1999) (per curiam); Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996) (en banc), vacated on other grounds, 523 U.S. 574 (1998).
Lunney's general allegations of threats and harassment are insufficient to state a claim because comments that are merely "insulting" or "disrespectful" do not give rise to a constitutional violation. Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (citing Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)) (sarcastic comments do not rise to the level of retaliatory action); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam) ("name calling" insufficient to state a constitutional claim); Montero v. Crusie, 153 F. Supp. 2d 368, 376 (S.D.N.Y. 2001) ("Verbal threats or harassment, unless accompanied by physical force or the present ability to effectuate the threat, are not actionable under § 1983.") (citations omitted). In addition, "[p]risoners may be required to tolerate more . . . than average citizens, before a [retaliatory] action taken against them is considered adverse." Davis, 320 F.3d at 353 (internal citations and quotations omitted) (alterations in original). Thus, Lunney's general allegations regarding improper behavior by staff against other inmates that he is alleged to have witnessed while confined in the SHU, Pl. Mem. at 11, do not state a claim.
Lunney makes an additional claim that defendant Fischer threatened to transfer Lunney to another facility for writing grievances. Compl. ¶ 19. Although prisoners have no liberty interest in remaining at a particular facility, prison officials may not transfer inmates in retaliation for exercising their constitutional rights. Davis v. Kelly, 160 F.3d 917, 920 (2d Cir. 1998) (internal citation omitted). At least one circuit has held that threats to transfer an inmate who complained about the administration of the law library can constitute the basis of a retaliation claim, even if the inmate is never transferred. Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001). In Gomez, the Ninth Circuit held that because threats to transfer a prisoner had a "chilling effect" on the prisoner's exercise of his First Amendment rights, the threats were sufficient to sustain a retaliation claim. Id. at 1127-28
Even under the standard of Gomez, however, Fischer's threats cannot be said to constitute retaliation. Although Lunney is no longer at Sing Sing, he does not allege that he was transferred because he filed grievances against prison officials. In addition, Lunney does not allege that he was actually deterred from filing grievances because of Fischer's threats. Consequently, Lunney's retaliation claim against Fischer must fail with respect to the threatened transfer.
Nonetheless, Lunney does assert that he was threatened with physical violence for filing grievances, Compl. ¶ 19; Pl. Mem. at 11, and thus he has stated a claim under the First Amendment. See, e.g., Hernandez v. Goord, 312 F. Supp. 2d 537, 545 (S.D.N.Y. 2004) (threatened bodily injury and threats to inmate's life sufficient to state a claim); but see Malsh v. Austin, 901 F. Supp. 757, 763 (S.D.N.Y. 1995) (threats of "disciplinary action, physical violence, an extension of his time in keeplock, and possible segregation" in retaliation for seeking dental care do not state a claim where plaintiff does not suffer an injury). No "greater level of detail," Def. Reply at 5, is required for Lunney's pleading. See Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002). While Lunney does not allege that Selsky and Brureton had any responsibility for these retaliatory practices, he does allege that Fischer was responsible, Affirm. ¶ 3(b), and thus he has stated a claim against Fischer. Fischer does not appear to attempt to raise a qualified immunity defense at this time with respect to the First Amendment claim. See Def. Reply at 9-10. Nor does he allege a lack of personal involvement to the extent a claim is stated. See id. at 8-9. Consequently, the First Amendment claim remains against Fischer with respect to Lunney's claims of threats of physical violence.
3. Fourteenth Amendment Due Process Claim
Lunney argues that his right to Due Process was violated by two separate actions. First, he argues that the defendants' failure to provide him with a timely written disposition of his second disciplinary hearing was a violation of his Due Process rights. Compl. at 7 (¶ 1); Pl. Mem. ¶¶ 18, 26, 27, 28. Second, Lunney claims that Selsky improperly ordered a second disciplinary hearing after an Article 78 proceeding had been filed with respect to the first hearing. Compl. ¶ 8; Pl. Mem. at 6. Each claim will be analyzed separately. Although Lunney mentions a dispute with the hearing officer over the hearing officer's alleged bias in the second hearing, Compl. ¶ 6, he does not appear to raise it as an additional basis for his Due Process claim.
a. Law governing disciplinary proceedings
A party asserting a Due Process claim "must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process." Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004) (quoting Giant v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001)). Prisoners subject to disciplinary proceedings can show a liberty interest only if "disciplinary punishment 'imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" See Hanrahan v. Doling, 331 F.3d 93, 97 (2d Cir. 2003) (per curiam) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). "Factors relevant to determining whether the plaintiff endured an atypical and significant hardship include 'the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions' and 'the duration of the disciplinary segregation imposed compared to discretionary confinement.'" Palmer v. Richards, 364 F.3d 60, 66 (2d Cir. 2004) (quoting Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir. 1998)).
There is no bright line rule in determining whether a particular period of confinement in a SHU meets the Sandin standard of an "atypical and significant" hardship thereby implicating Due Process protection.Palmer, 364 F.3d at 64 (citations omitted). Defendants do not argue that Lunney's liberty interests were not implicated by his nine-month sentence of confinement to the SHU — which was later reduced to six months — under the standard established in Sandin. It is assumed, therefore, that Lunney's sentence of confinement did implicate a liberty interest for purposes of this motion. Consequently, the issue is whether Lunney was denied Due Process when he was not provided with a written disposition of his disciplinary hearing and when the second hearing was scheduled.
b. Written disposition of disciplinary hearing
Under the Fourteenth Amendment, the following procedural protections are required in disciplinary hearings when the length or conditions of confinement trigger due process protections: "advance written notice of the charges; a fair and impartial hearing officer; a reasonable opportunity to call witnesses and present documentary evidence; and a written statement of the disposition, including supporting facts and reasons for the action taken." Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004) (citing Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999));accord McCann v. Coughlin, 698 F.2d 112, 121-22 (2d Cir. 1983); Higgins v. Coombe, 2002 WL 362776, at *2 (S.D.N.Y. Mar. 6, 2002); Silva v. Sanford, 1998 WL 205326, at *6 (S.D.N.Y. Apr. 24, 1998). The importance of providing inmates with a detailed written disposition is well established. "Without a detailed statement of the [decisionmaker's] findings and conclusions, a reviewing court or agency cannot determine whether the finding of guilt was based on substantial evidence or whether it was sufficiently arbitrary so as to be a denial of the inmate's due process rights." Chavis v. Rowe, 643 F.2d 1281, 1287 (7th Cir. 1981) (citation omitted). Without a written disposition of a charge, an "inmate will be at a severe disadvantage in propounding his own cause to or defending himself from others." Wolff, 418 U.S. at 565.
Defendants contend that there is no Due Process violation, in part, because Lunney admits that he requested, and was granted, permission to leave the hearing. See Def. Mem. at 10. It is unclear why this circumstance should have any bearing on the right to receive a "written statement of the disposition," Luna, 356 F.3d at 487, a requirement that has been in place since the Supreme Court's decision in Wolff v. McDonnell. See 418 U.S. at 563.
Defendants assert that Lunney eventually received a transcript of the disposition on or about April 16, 2003, prior to the conclusion of his Article 78 proceeding. Def. Mem. at 10. The transcript does contain the required elements of the written disposition, see Transcript, at 59-60, but it hardly satisfies Due Process to receive such a transcript five months following the prisoner's release from the SHU. See generally Walker v. Bates, 23 F.3d 652, 658-59 (2d Cir. 1994) ("[O]nce prison officials deprive an inmate of his constitutional procedural rights at a disciplinary hearing and the prisoner commences to serve a punitive sentence imposed at the conclusion of the hearing, the prison official responsible for the due process deprivation must respond in damages. . . ."). The defendants may have a stronger argument that any Due Process violation was mitigated, or perhaps obviated, based on the allegation that Lunney was informed of the results of the disposition, or was otherwise given the opportunity to obtain the written disposition, but no such facts are available to the Court on this motion to dismiss. See McKenna, 386 F.3d at 436 ("[T]he plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support his claim, but also those that defeat the immunity defense.").
Finally, defendants argue that New York law provides that the remedy for failure to provide a written disposition is an order that the disposition be served, not that the penalty be expunged. Def. Mem. at 10-11 (citing Vargas v. Coughlin, 168 A.D.2d 917 (4th Dep't 1990) andMatter of Ramos v. Herbert, 256 A.D.2d 1191 (4th Dep't 1998)). The defendants' argument is irrelevant, however, as Lunney is seeking damages for a violation of the federal constitution, not for a violation of state law.
The defendants' argument on qualified immunity for this claim is confusing. They assert that the "plaintiff has failed to identify any Supreme Court or Second Circuit case law that clearly establishes a right to receive a written copy of a disciplinary hearing decision." Def. Reply at 9. This may be literally true inasmuch as Lunney notes that "the State of New York and the [Department of Correctional Services] have promulgated regulations and procedures governing disciplinary hearings in prison so as to comply with those minimal due process requirements established by the Supreme Court in Wolff v. McDonnell," but only claims that "these regulations and procedures were not followed." Pl. Mem. at 16. The issue, however, is not what legal argument Lunney has been able to muster but whether or not there is clearly established law requiring a written disposition of disciplinary charges. Tellingly, defendants make no reasoned argument that this right is not clearly established. While they assert that Ramos and Vargas have cast doubt on whether an inmate is entitled to a written disposition of the charges, both cases in fact explicitly affirm the existence of such a right and Ramos actually identifies the entitlement as a requirement of "due process." 256 A.D.2d at 192.
As already noted, Wolff unambiguously established the right to receive a written notice of the disposition. Wolff, 418 U.S. at 563-65. Second Circuit case law has reaffirmed this requirement. See Luna, 356 F.3d at 487; Kalwasinski, 201 F.3d at 108; McCann, 698 F.2d at 121-22. Further, courts have rejected other claims that procedural rights set forth under Wolff are not clearly established. See, e.g., Pino v. Dalsheim, 605 F. Supp. 1305, 1314 n. 9 (S.D.N.Y. 1985) (decisions inWolff and in subsequent litigation put Department of Corrections staff on notice with respect to constitutional principles at stake in disciplinary proceedings). While additional specifics regarding the circumstances under which defendants did not supply Lunney with this written disposition might show that "a reasonable person, acting under the circumstances then confronting [the] defendant, would [not] have understood that his actions were unlawful," Hanrahan, 331 F.3d at 98 (internal citation and quotation omitted), that determination cannot be made in the context of this motion to dismiss. Accordingly, Lunney's claim must stand.
c. Validity of the second disciplinary hearing
Lunney claims that his Due Process rights were violated when Selsky ordered a rehearing after Lunney exhausted his administrative appeals and had commenced an Article 78 proceeding. See Compl. ¶ 8, id. at 7 (¶ 1). Lunney argues that because Justice Sheridan of the New York Supreme Court found that the rehearing was invalid under New York law, he should be entitled to collateral estoppel. Pl. Mem. at 14.
The collateral estoppel doctrine "prevents a party from relitigating an issue decided against that party in a prior adjudication." Curry v. City of Syracuse, 316 F.3d 324, 331 (2d Cir. 2003) (citation and quotation omitted). Lunney's argument is rejected because no determination was made by the State Supreme Court of any issue of federal law, let alone the issue of "qualified immunity." See id. (collateral estoppel "may be invoked to preclude a party from raising an issue (1) identical to an issue already decided (2) in a previous proceeding in which that party had a full and fair opportunity to litigate") (citation and quotation omitted). Indeed, as a general matter, the Second Circuit has held that Article 78 judgments may not be used to estop defendants from litigating the same claims in § 1983 lawsuits because the incentive to litigate is not the same and the defenses available in § 1983 suits are not available in Article 78 proceedings. See Gutierrez v. Coughlin, 841 F.2d 484, 486 (2d Cir. 1988) (per curiam).
Lunney's argument on the merits is also unavailing. Whatever violation Lunney claims of New York law is not relevant because violations of state procedural rules are not necessarily violations of the federal constitution. See, e.g., Shakur v. Selsky, 391 F.3d 106, 118-19 (2d Cir. 2004); Russell v. Coughlin, 910 F.2d 75, 78 n. 1 (2d Cir. 1990). The Court is not aware of any cases suggesting that the federal Due Process clause bars the ordering of a second hearing and it is not clear why this should even be the case. As long as the essential requirements of Due Process were met — such as notice of the charges and a hearing conducted in accordance with Due Process, see, e.g., Luna, 356 F.3d at 487 — there is no basis on which to conclude that Lunney's constitutional rights were violated.
d. Personal involvement
Lunney charges Brureton, Fischer, and Selsky with violations of his Due Process rights at the prison disciplinary hearing. See Pl. Mem. ¶ 3(d). Each defendant's personal involvement is examined in turn.
The basis for Lunney's Due Process claim against Lieutenant Brureton is Brureton's role as a hearing officer in the rehearing that began October 15, 2002 at which Lunney was eventually sentenced to SHU confinement. Compl. ¶¶ 6, 21; Pl. Mem. at 18. Defendants do not contest that Brureton's involvement in the disciplinary hearing is sufficient to allege personal involvement and thus he remains as a defendant on this claim.
Lunney's Due Process claim against Fischer stems from Fischer's failure to correct Brureton's procedural error when the plaintiff applied for a Superintendent's Review immediately after the disciplinary hearing. Compl. ¶ 7; Pl. Mem. at 18. With respect to his Due Process claims, Lunney has not adequately alleged Brian Fischer's personal involvement. Although Lunney filed a Request for Superintendent's Review with Brian Fischer, the review of the second hearing was conducted by the First Deputy Superintendent of Sing Sing, Paul Kikendall. Compl. ¶ 7. Lunney does not allege that Fischer himself had any involvement with deciding the appeal or reviewing Kikendall's disposition of the appeal. Mere "linkage in the prison chain of command" is insufficient to ground a claim of personal involvement, Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (per curiam) (citations omitted), and submitting an appeal or complaint to a subordinate for disposition is not sufficient to find personal involvement, see Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (referring an appeal from an administrative segregation hearing to another official for determination and responding to an inquiry regarding the status of the appeal insufficient to create personal involvement); Farid v. Goord, 200 F. Supp. 2d 220, 235 (W.D.N.Y. 2002) (no personal involvement where a prisoner's petition was received by defendant but "sent . . . down the chain of command for investigation"). Therefore, the Due Process claims against Fischer must be dismissed.
With respect to Selsky, he is sued only because he ordered the second hearing — a claim that we have determined is subject to a qualified immunity defense — and for "failing to provide plaintiff with a written copy of the hearing disposition." Pl. Mem. at 18. But no facts are alleged showing his involvement in this latter failure. Lunney asserts that he appealed to the Commissioner of the Department of Correctional Services and that, while the appeal was "turned over" to Selsky for review and consideration, Compl. ¶ 8, it was ultimately decided by Robert J. Murphy, id. ¶ 9; Hearing Review, who has not been named as a defendant. Accordingly, the claim against Selsky cannot proceed. Cf. Williams v. Smith, 781 F.2d 319, 324 (2d Cir. 1986) (personal involvement stated where defendant superintendent of prison either affirmed improper disciplinary conviction, was directly responsible for the conduct of prison disciplinary hearings, or permitted the challenged unconstitutional practice to occur as a matter of custom or policy).
III. CONCLUSION
For the foregoing reasons, the defendants' motion should be granted in part and denied in part. Specifically, the following claims should remain in the case: (1) the Eighth Amendment claim against Fischer with respect to improperly prepared food; (2) the First Amendment claim against Fischer alleging that Lunney was threatened with physical retaliation for filing grievance complaints; and (3) the Due Process claim against Brureton regarding the failure to receive a written disposition of his disciplinary hearing. The remaining claims should be dismissed. Lunney should be given the opportunity to file an amended complaint in the event that he can cure any of the defects in his original complaint. See, e.g., Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("[i]t is the usual practice upon granting a motion to dismiss to allow leave to replead") (citing cases), cert. denied, 503 U.S. 960 (1992).
PROCEDURE FOR FILING 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 have ten (10) days from service of this Report and Recommendation to serve and file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Lewis A. Kaplan, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Kaplan. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).