Opinion
11 Civ. 636 (LAP)
03-29-2012
CESAR MATEO, Plaintiff, v. PHILLIP HEATH, SUPERINTENDANT; ROBINSON, INMATE GRIEVANCE PROGRAM SUPERVISOR; ROBERT BURTON, CORRECTION OFFICER; RENEE CURRY, CORRECTION OFFICER; TYHESIA GRANT-HALL, CORRECTION OFFICER; and RAY PHOENIX, CORRECTION OFFICER, Defendants.
MEMORANDUM AND ORDER
:
This is one of several actions Plaintiff Cesar Mateo ("Plaintiff"), a prisoner currently incarcerated at Sing Sing Correctional Facility ("Sing Sing"), has brought pro se against various New York State prison officials under 42 U.S.C. § 1983. In this case, Plaintiff sues six employees of the New York State Department of Correctional Services ("DOCS") in their "individual, personal capacity": Sing Sing Superintendent Phillip Heath ("Heath"), Sing Sing Supervisor of Inmate Grievance Program Robinson ("Robinson"), and Sing Sing Corrections Officers Robert Burton ("Burton"), Renee Curry ("Curry"), Tyhesia Grant-Hall ("Grant-Hall"), and Ray Phoenix ("Phoenix").
Plaintiff's complaint involves a single incident. Plaintiff alleges that on November 4, 2010, all six Defendants conspired to keep a visitor from him, in retaliation for prison grievances he previously filed. Plaintiff claims that this violated his free speech right to file grievances under the First Amendment to the United States Constitution and that the visitation denial was itself a constitutional violation. Plaintiff filed the instant action on January 24, 2011. On September 16, 2011, Defendants moved to dismiss the complaint, arguing that (1) Plaintiff failed to exhaust his administrative remedies, (2) the complaint fails to state claims for retaliation or conspiracy, (3) the complaint fails to allege the personal involvement of Defendants Heath, Robinson, and Burton, (4) Defendants are entitled to qualified immunity, and (5) Plaintiff is barred by 24 U.S.C. § 1997c(e) from recovering compensatory damages. (See Defs.' Mem. Law Supp. Mot. Dismiss ("MTD") [Dkt. No. 21].) On November 28, 2011, Mateo filed an affirmation in opposition. (Aff. Opp. Mot. Dismiss ("Opp.") [Dkt. No. 23].) On December 1, 2011, Defendants filed a reply [Dkt. No. 25].
For the reasons that follow, Defendants' motion to dismiss [Dkt. No. 20] is GRANTED.
I. BACKGROUND
The following facts are taken from Plaintiff's complaint and do not constitute findings of fact by the Court. The Court assumes these facts to be true only for purposes of deciding the pending motion and construes them in a light most favorable to Plaintiff, the non-moving party.
In considering a motion to dismiss, the Court accepts all well-pleaded factual allegations in the complaint as true, and draws all reasonable inferences in the plaintiff's favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The Court may also consider any documents that are attached to, referenced in, or integral to the preparation of the pleadings. See id. at 152-53. --------
From November 1, 2010 to November 12, 2010, Plaintiff was temporarily held at Sing Sing for the purpose of giving a deposition. (Am. Compl. [Dkt. No. 9] ¶ 1.) Plaintiff alleges that certain non-defendant corrections officers who processed him at Sing Sing were aware that he was at the facility to give a deposition in connection with a civil action he had brought against DOCS staff. (Id. ¶ 3.) Plaintiff further alleges that other corrections officers, including Defendant Burton, were aware of Plaintiff's history of filing grievances against DOCS staff, including a grievance denied by the Central Office Review Committee ("CORC") on November 3, 2010. (Id. ¶ 8.)
On November 3, 2010, Defendant Burton escorted Plaintiff to and from his scheduled deposition. (Id. ¶ 4.) On November 4, 2010, Plaintiff was told by Burton that a visitor had come to see him but had left after being told that Plaintiff had been transferred out of Sing Sing. (Id. ¶ 5.) Burton advised Plaintiff to call the visitor to arrange for another visit. (Id.) Plaintiff alleges that the visiting room corrections officers on duty, Defendants Curry, Grant-Hall, and Phoenix, intentionally gave his visitor incorrect information about his whereabouts, causing the visitor to leave the facility without seeing him. (Id. ¶ 6.) Plaintiff alleges that these Defendants colluded intentionally to prevent his visitor from meeting with him "in retaliation to [sic] my lawsuit and to the content of the deposition." (Id. ¶¶ 8, 11.)
On November 12, 2010, Plaintiff grieved the November 4 incident before Sing Sing's Inmate Grievance Resolution Committee ("IGRC"). (Id. Ex. 1.) Plaintiff's grievance was denied on December 2, 2010. (Id. Ex. 7.) The IGRC response form indicates that "[p]er investigation, there was an error in grievant cell location. It was noted that the error was not personal in nature against grievant." (Id.) On December 14, 2010, Plaintiff received a copy of the denial; he appealed it to Defendant Superintendent Heath on the same day. (Id. Exs. 7, 8.) On January 3, 2011, Plaintiff was informed that his appeal had been received by Heath and was under review. (Id. Ex. 9.) On January 10, 2011, Plaintiff, now at Coxsackie Correction Facility, informed Defendant Robinson, Sing Sing's inmate grievance program supervisor, that the superintendent's response was overdue and that Plaintiff wished to appeal his grievance to the CORC. (Id. Ex. 10.) Plaintiff asked Robinson for the proper appeal form, (id.), but that form apparently was never provided. (See Opp. ¶ 12.)
Plaintiff's appeal was ultimately reviewed by Superintendent Heath on January 19, 2011. (Id. ¶ 11, Ex. 1.) Mateo only received a copy of this response through discovery in the instant case. (Id. ¶ 12.) Heath's response reads:
Grievant states that he received a visit and that his visitor was told that he had been transferred.(Id. Ex. 1.)
Grievance accepted to the extent that an error was made in the grievant's cell location and visitor was given incorrect information. This administration has not noted any intended wrongdoing by staff toward grievant.
II. DISCUSSION
A. Legal Standard
1. Motion to Dismiss
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Court must accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, the Court does not credit "mere conclusory statements" or "threadbare recitals of the elements of a cause of action." Iqbal, 129 S. Ct. at 1949.
In the case of a pro se litigant, the Court reads the pleadings leniently and construes them to raise "the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (citation omitted). This guidance applies with particular force when the plaintiff's civil rights are at issue. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004); see also Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999). However, to survive a Rule 12(b)(6) motion to dismiss, a pro se plaintiff's factual allegations must be "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
2. Section 1983
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); McKithen v. Brown, 481 F.3d 89, 99 (2d Cir. 2007).
Retaliation against a prisoner for pursuing grievances "violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983." Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). However, while "the scope of conduct that can constitute actionable retaliation in the prison setting is broad, it is not true that every response to a prisoner's exercise of a constitutional right gives rise to a retaliation claim." Dawes v. Walker, 239 F.3d 489, 492-93 (2d Cir. 2001), overruled sub nom. on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), as recognized in Phelps v. Kapnolas, 308 F.3d 180, 187 n.6 (2d Cir. 2002). To state a prima facie retaliation claim for filing a grievance, an inmate must allege that an official took an "adverse action" against him and that there was a causal relationship between the grievance filing and the adverse action. Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004). An "adverse action" is "retaliatory conduct 'that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights.'" Id. at 381 (citing Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)). Actions below this threshold are deemed de minimis and outside the ambit of actionable First Amendment retaliation. Id. (citing Dawes, 239 F.3d at 493).
Because retaliation claims are easily fabricated, courts must "examine prisoners' claims of retaliation with skepticism and particular care," Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995), and require "detailed fact pleading . . . to withstand a motion to dismiss." Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). Wholly conclusory claims of retaliation "can be dismissed on the pleadings alone." Graham, 89 F.3d at 79.
B. Analysis
Defendants argue that Plaintiff's claims are subject to dismissal for failure to exhaust his administrative remedies. The Court need not reach this question, or Defendants' alternate grounds for relief, because even assuming Plaintiff fully grieved his claims, the alleged incident does not constitute a prima facie constitutional violation.
Most courts hold that "contact visits of prison inmates are a privilege for inmates, not a right, and thus do not give rise to a liberty interest protected by the due process clause." See Baskerville v. Goord, No. 97 Civ. 6413, 1998 WL 778396, at *6 (S.D.N.Y. Nov. 5, 1998); see also Mills v. Fischer, No. 09 Civ. 0966A, 2010 WL 364457, at *2 (W.D.N.Y. Feb. 1, 2010) (collecting cases). This is because "[a]n inmate does not retain rights inconsistent with proper incarceration," and "freedom of association is among the rights least compatible with incarceration." Overton v. Bazzetta, 539 U.S. 126, 131 (2003). Plaintiff has not alleged more than a one-time denial of visitation. Given the Supreme Court's instruction in Overton that "[s]ome curtailment" of the right to visitation "must be expected in the prison context," id., even if the single November 4 denial of visitation were, arguendo, intentional, that fact alone would not directly violate Plaintiff's liberty interest.
An act need not rise to the level of a constitutional violation to be considered an "adverse action" for a retaliation claim. See Dawes, 239 F.3d at 491. But a single denial of visitation, even if intentional and unjustified, is nevertheless unlikely to chill a person of ordinary firmness from continuing to exercise his right to file grievances. See Ross v. Westchester Cnty. Jail, No. 10 Civ. 3937, 2012 WL 86467, at *7 (S.D.N.Y. Jan. 11, 2012) (citing Davis, 320 F.3d at 353); Mills, 2010 WL 364457, at *3 (citing Davidson v. Chestnut, 193 F.3d 144, 150 (2d Cir. 1999)). Further, Plaintiff has failed to come forth with the "detailed fact pleading" required under Flaherty to support his claim that the denial was causally connected to any filed grievance. Instead, Plaintiff's evidence of a retaliatory conspiracy among the named Defendants, up to and including Superintendent Heath, is conclusory and almost entirely circumstantial. (See, e.g., Opp. ¶¶ 22, 27 ("Such action taken against me by defendants would not had [sic] happened by the mere actions of a single actor.").) The temporal proximity of Plaintiff's November 3 deposition to the November 4 denial of visitation is, alone, insufficient to support his retaliation claim. See Colon, 58 F.3d at 872-73. Plaintiff has offered no direct evidence whatsoever that Burton or any other Defendant intended to retaliate against him. In sum, Plaintiff has failed to state a prima facie case of retaliation as to the one-time visitation denial of November 4.
III. CONCLUSION
Because Plaintiff has failed to state a claim under 42 U.S.C. § 1983 with respect to the incident of November 4, Defendants' motion to dismiss [Dkt. No. 20] is GRANTED, and Plaintiff's claims are dismissed with prejudice. The Clerk of the Court shall mark this case closed and dismiss all pending motions as moot. SO ORDERED. Dated: New York, New York
March 29, 2012
/s/_________
Loretta A. Preska
Chief U.S. District Judge