Chavez v. Gutwein

IVAN CHAVEZ, Plaintiff, v. ERIC GUTWEIN, et al., Defendants.

No. 20-CV-342 (KMK)

United States District Court, S.D. New York

September 17, 2021

Ivan Chavez Elmira, NY Pro se Plaintiff.

John R. Doran, Esq. State of New York Office of the Attorney General Counsel for Defendants.

OPINION & ORDER

KENNETH M. KARAS United States District Judge.

Pro se Plaintiff Ivan Chavez (“Plaintiff”), currently residing at Elmira Correctional Facility, brings this Action pursuant to 42 U.S.C. § 1983 against Hearing Officer Eric Gutwein (“Gutwein”), Nurse Lurch (“Lurch”), Correction Officer Nucatola (“Nucatola”), and Director of Special Housing Donald Venettozzi (“Venettozzi”; collectively “Defendants”), alleging violations of his due process rights. (Am. Compl. ¶¶ I(A)-(B), II(B) (Dkt. No. 33).) Before the Court is Defendants' Motion To Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (the “Motion”). (See Defs.' Not. of Mot. (Dkt. No. 38).) For the reasons that follow, Defendants' Motion is granted.

I. Background

A. Factual Background

The alleged facts, which are accepted as true for purposes of resolving this Motion, are as follows. The events giving rise to this Action took place while Plaintiff was incarcerated at Green Haven Correctional Facility (“Green Haven”). (Am. Compl. ¶¶ III, IV(D)(1).)^[1] At approximately 1:50 P.M. on August 11, 2017, Plaintiff was in the Green Haven clinic bullpen waiting to return to his cell. (Id.) While waiting in the bullpen, Plaintiff was speaking with a fellow inmate by the name of “Quirindongo.” (Id. ¶ IV(D)(2).)^[2] Quirindongo was advising Plaintiff on how to “procur[e] an industry job.” (Id.) Plaintiff passed Quirindongo a pencil so the latter could take down Plaintiff's information and provide him with “instructions for employment.” (Id.) Lurch, a nurse at Green Haven, reported to Nucatola that she had observed “an ‘unidentified' item being passed between [Plaintiff] and . . . [Quirindongo].” (Id. ¶ IV(B)(1); see also Id. ¶ IV(D)(5).) Nucatola ordered Plaintiff and Quirindongo to step out of the bullpen and proceeded to conduct a “body frisk” search of both inmates. (Id. ¶ IV(D)(3).) Nucatola found no contraband during this search. (Id.) A search of Plaintiff's cell also failed to uncover any contraband. (Id.) Plaintiff, however, was then escorted to “SHU-44” and was “never returned to his cell.” (Id.) At some point, Nucatola created a false report indicating that Plaintiff had passed Quirindongo a “leafy green substance, in baggies, ” which tested positive as marijuana. (Id. ¶ IV(B)(2).)

On August 15, 2017, Plaintiff was served with a misbehavior report that accused him of “smuggling.” (Id. ¶ IV(D)(4).) The “genesis” of this report was Lurch's accusation that an unidentified object had been passed between Plaintiff and Quirindongo. (Id. ¶ IV(D)(5).)

At around 1:50 P.M. on August 17, 2017, Plaintiff was taken to a “[T]ier III hearing” related to the smuggling charge. (Id. ¶ IV(D)(6).) Defendant Gutwein, a “commissioner's hearing officer, ” presided over the hearing. (Id. ¶¶ IV(B)(3), (D)(6).) At the hearing, Plaintiff “maintained his innocence” and “waived none of his procedural or substantive due process rights.” (Id. ¶ IV(D)(6).) Both he and Quirindongo testified that the item being passed between them in the bullpen was a pencil. (Id. ¶ IV(D)(7).) After testifying, Plaintiff requested to have Lurch called as a witness in order to clarify what she saw being passed between him and Quirindongo. (Id.) Gutwein, however, denied the request without giving a “good faith stated reason, ” and failed to provide “a 2176 witness interview notice, which is mandated.” (Id. ¶ IV(D)(8); see also Id. ¶ IV(B)(3) (alleging that Gutwein denied Plaintiff “the opportunity to call witnesses”).)

Gutwein found Plaintiff guilty and imposed a punishment of 150 days in SHU confinement, (id. ¶ IV(D)(9)), along with a “loss of all privileges, ” (id. ¶ IV(B)(4)). Plaintiff alleges that Gutwein's conclusion was “based . . . upon nothing but hearsay allegations contained in the fabricated report of . . . Nucatola, which originated” with Lurch's accusation. (Id. ¶ IV(B)(3).) In addition, although Nucatola created a false report stating that Plaintiff had passed Quirindongo a substance that tested positive as marijuana, the record of the hearing “is devoid of any drug test, or results, and none were introduced [during] the hearing.” (Id. ¶ IV(B)(2).)

On August 20, 2017, Plaintiff filed an appeal to Venettozzi, the “Dir[ector] of SHU.” (Id. ¶ IV(D)(10).) On October 12, 2017, (id. ¶ IV(D)(11)), having been “fully apprised of the entire matter and the blatant disregard for [Plaintiff's] due process rights, ” Venetozzi affirmed Gutwein's “decision of guilt” and the sanction he imposed, (id. ¶ IV(B)(4)). On October 10, 2017, however, Venettozzi reversed his decision, stating that “the hearing officer inappropriately denied a witness who may have provided relevant testimony.” (Id. ¶ IV(D)(12) (quoting Ex. H).)

Plaintiff alleges that Defendants violated his due process rights under the Fourteenth Amendment. (Id. ¶ II(B).) His claim is premised on “the inappropriate denial of witnesses and the reliance upon the false misbehavior report and hearsay testimony[] as the entire basis” for Gutwein's guilty finding. (Id.) Although Plaintiff did not serve the full 150-day confinement in SHU, apparently “receiv[ing] a time cut” after 117 days, he suffered “loss of all social activity; loss of classroom learning”; “loss of participation in two religious services per week”; “loss of liberty and recreation”; “loss of all phone contact with family”; and “severe mental and emotional anguish.” (Id. ¶ V.) He sues Defendants solely in their individual capacities, (id. ¶ I(B)), and seeks compensatory and punitive damages of $300.00 per day for each day spent in SHU “based upon the intentional malicious actions of . . . [D]efendants, ” (id. ¶ VI).^[3]

B. Procedural History

Plaintiff filed his initial Complaint on January 10, 2020. (Dkt. No. 2.) His request to proceed in forma pauperis was granted on February 20, 2020. (Dkt. No. 6.) On September 14, 2020, counsel for Defendants filed a pre-motion letter outlining the grounds for their anticipated motion to dismiss. (Dkt. No. 20.) On October 28, 2020, counsel for Defendants filed another letter indicating that Plaintiff had requested leave to file an amended complaint. (Dkt. No. 23.) On November 5, 2020, the Court gave Plaintiff permission to file his amended complaint, (Dkt. No. 25), which he did on January 22, 2021, (Dkt. No. 33). On the same day, Defendants again filed a pre-motion letter outlining the grounds for their anticipated motion to dismiss. (Dkt. No. 35.) In a memo endorsement entered on January 25, 2021, the Court set a briefing schedule for Defendants' Motion. (Dkt. No. 36.) Pursuant to this schedule, Defendants filed the instant Motion and supporting papers on February 26, 2021. (See D e f s .' Not. of Mot.; Defs.' Mem. of Law in Supp. of Mot. (“Defs.' Mem.”) (Dkt. No. 39); Defs.' Mem. Ex. 1 (“Seguin Decl.”) (Dkt. No. 39-1); Not. to Pro Se Litigant Who Opposes Rule 12 Mot. Supported by Matters Outside Pleadings (“Rule 12 Not.”) (Dkt. No. 40); Aff. of Service (Dkt. No. 41).) Plaintiff filed his Opposition on April 7, 2021. (Pl.'s Aff'n in Opp'n to Mot. (“Pl.'s Opp'n”) (Dkt. No. 42).)^[4]Defendants filed a Reply on April 20, 2021. (Reply Mem. of Law in Further Supp. of Defs.' Mot. (“Defs.' Reply”) (Dkt. No. 43).) Without seeking the Court's permission, Plaintiff filed a seven-page Sur-Reply on May 7, 2021. (Pl.'s Sur-Reply (Dkt. No. 45).)

II. Discussion

A. Standard of Review

“The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction and under 12(b)(6) for failure to state a claim are ‘substantively identical.'” Gonzalez v. Option One Mortg. Corp., No. 12-CV-1470, 2014 WL 2475893, at *2 (D. Conn. June 3, 2014) (quoting Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003), cert. denied, 540 U.S. 1012 (2003)).

1. Rule 12(b)(1)

“A federal court has subject matter jurisdiction over a cause of action only when it has authority to adjudicate the cause pressed in the complaint.” Bryant v. Steele, 25 F.Supp.3d 233, 241 (E.D.N.Y. 2014) (quotation marks omitted). “Determining the existence of subject matter jurisdiction is a threshold inquiry[, ] and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 561 U.S. 247 (2010); United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014) (describing subject matter jurisdiction as the “threshold question” (quotation marks omitted)).

The Second Circuit has explained that a challenge to subject-matter jurisdiction pursuant to Rule 12(b)(1) may be facial or fact-based. See Carter v. HealthPort Techs LLC, 822 F.3d 47, 56 (2d Cir. 2016). When a defendant raises a facial challenge to standing based solely on the complaint and the documents attached to it, “the plaintiff has no evidentiary burden” and a court must determine whether the plaintiff asserting standing “alleges facts that affirmatively and plausibly suggest that the plaintiff has standing to sue.” Id. (quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011)). In making such a determination, a court must accept as true all allegations in the complaint and draw all inferences in the plaintiff's favor. Id. at 57. However, where a Rule 12(b)(1) motion is fact-based and a defendant proffers evidence outside the pleadings a plaintiff must either come forward with...