Hollman v. Bartlett

ELIJAH HOLLMAN, Plaintiff, v. LIEUTENANT KRISTIE BARTLETT and LIEUTENANT BRIAN GUIMOND, ¹Defendants.

08-CV-1417 (NGG) (ALC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: August 26, 2011

REPORT AND RECOMMENDATION

CARTER, UNITED STATES MAGISTRATE JUDGE:

I. Background

A. Procedural History

Plaintiff Elijah Hollman initially commenced this action on April 4, 2008 as a pro se party while incarcerated at the Federal Correctional Institution in Elkton, Ohio. He asserted two claims pursuant to Bivens v. Six Unknown Agent of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Hollman v. Lindsay, No. 08-CV-1417, 2009 WL 3112076, at *1 (E.D.N.Y. Sept. 25, 2009). Plaintiff's first cause of action alleged that while he was previously incarcerated at the Metropolitan Detention Center ("MDC"), MDC officials Warden Cameron Lindsay, Kevin Page, Nicole Waller, Dr. Parry Hess, and Jessie Anderson violated Plaintiff's constitutional right to drug rehabilitation by denying him access to the Residential Drug Abuse Program ("RDAP"). See id. Plaintiff's second cause of action alleged that MDC officials Lieutenants Bartlett andGuimond violated Plaintiff's constitutional due process rights by placing him in the MDC's special housing unit (the "SHU") on September 6, 2007 for a week and, again, on October 25, 2007, and that they colluded to deprive Plaintiff of his right to rehabilitation. See id. at *1, 5, 10. On September 8, 2008, Defendants moved to dismiss the claims or, in the alternative, for summary judgment. On September 25, 2009, the Court dismissed the first claim against Defendants Lindsay, Page, Waller, Hess, and Anderson for failing to state a claim upon which relief can be granted. See id. at *9. The Court found that Plaintiff did not have a constitutional right to participate in the RDAP and that he had no protected liberty interest in the RDAP's one-year sentence reduction. See id. The Court also dismissed all claims insofar as they were alleged against Defendants in their official capacity. See id. at *8. Plaintiff's second cause of action - that Defendants Bartlett and Guimond, in their individual capacities, violated Plaintiff's constitutional right to due process by placing him in the SHU at the MDC in September and, again, in October 2007 - survived summary judgment in part because the Court found insufficient evidence in the record to dismiss the claim on summary judgment grounds. Id. at *14, 16. The Court ordered "limited discovery on the issues of whether the PLRA's exhaustion requirement bars Hollman's claims and whether Defendants Bartlett and Guimond are entitled to qualified immunity." Id. at *16.

Plaintiff is no longer incarcerated and obtained counsel shortly after the Court rendered its decision. On July 10, 2010, Plaintiff's counsel filed her notice of appearance. During a telephonic conference on August 13, 2010, Plaintiff notified the Court and Defendants about his intention to amend the complaint. Defendants said that they would oppose the amendment. By order dated October 24, 2010, the Honorable Nicholas G. Garaufis, United States District Judge, referred to me Plaintiff's motion to amend the complaint. On February 9, 2011, I held oral arguments. For the reasons set forth below, I respectfully recommend that the Court deny Plaintiff's motion to amend his complaint.

B. Proposed Amended Complaint

Plaintiff seeks to add the United States of America and MDC's Special Investigative Services ("SIS") Investigator S. Rivera as Defendants. The proposed amended complaint alleges that Plaintiff filed the necessary paperwork and made substantial efforts to be admitted into the RDAP because the Honorable Thomas C. Platt recommended the program. (P. Am. Compl.

¶¶ 8-17.) On September 6, 2007, staff members mentioned that they felt "pressured" by Plaintiff's persistence with the program. (Id. ¶ 19.) Those staff members allegedly "colluded" with Defendant Bartlett to place Plaintiff in administrative segregation pending a SIS investigation without reason. (Id. ¶ 20.) Plaintiff was released a week later, and he continued his efforts to participate in the RDAP. (Id. ¶ 21.) On October 25, 2007, an unnamed prisoner in a work cadre, other than the one to which Plaintiff was assigned, falsely accused Plaintiff of threatening him. (Id. ¶ 22.) In response, Defendant Guimond housed Plaintiff in the SHU pending an investigation of the allegations. (Id. ¶ 23.) S. Rivera was assigned to investigate the complaining inmate's allegations, that Plaintiff had threatened the inmate and "[threw] a punch" at the inmate. (Id. ¶ 24.) Rivera issued a report on November 15, 2007 ("November 15 report"). (Id. ¶ 25.) Plaintiff alleges that the November 15 report exonerated him because it admitted that a review of the tape recordings from the prison's camera system failed to reveal events corroborating the inmate's allegations and that no other inmates were willing to cooperate in the investigation. (Id.) Despite the exoneration, Rivera determined that Plaintiffshould remain in the SHU, while the complaining inmate, who allegedly fabricated the story, was never placed in the SHU. (Id. ¶ 26.) Plaintiff remained in the SHU for approximately two and one-half months after the issuance of the November 15 report before he was transferred to the Federal Correctional Institution at Elkton, Ohio ("FCI Elkton"). (Id. ¶ 27.) He argues that FCI Elkton is a correctional institution with a higher security level than which Plaintiff had been designated and it housed inmates that were more dangerous than Plaintiff. (Id. ¶ 28.) While he was at the FCI Elkton, Plaintiff was informed that he was now classified as a low-security inmate with "in" custody, in part, because Rivera placed in Plaintiff's file that a SIS investigation revealed that Plaintiff threatened another inmate. (Id. ¶¶ 31-33.) Because of this change in classification, he was denied furlough to participate in otherwise permissible activities. (Id. ¶ 30.)

The first proposed cause of action is similar to the surviving claim from the original complaint. It alleges that Defendants Bartlett and Guimond, in their individual and official capacities, both committed intentional torts by placing Plaintiff in the "hole" and depriving him of his right to be free from such restraint. (Id. ¶¶ 6, 35.) Plaintiff claims in his proposed second cause of action that Rivera, as an individual and in his capacity as an employee of the United States America, deprived Plaintiff of his right to be free from restraint. (Id. ¶¶ 6, 36-37.) His third proposed third cause of action claims that S. Rivera, as an individual and in his capacity as an employee of the United States America, violated Plaintiff's due process rights. (Id. ¶¶ 38-39.) In his proposed fourth cause of action, Plaintiff alleges that Rivera, as an individual and in his capacity as an employee of the United States America, violated Plaintiff's EighthAmendment rights. (Id. ¶¶ 40-41.) He seeks monetary relief for the violations committed against him.

Defendants oppose the amendments to the complaint, arguing that (1) the Court lacks subject matter jurisdiction over Plaintiff's proposed Federal Torts Claims Act claims against the United States and Rivera; (2) sovereign immunity bars Plaintiff's proposed Bivens claims insofar as they are asserted against Rivera in his official capacity; (3) sovereign immunity bars Plaintiff's proposed Bivens claims insofar as they are asserted against the United States; (4) Plaintiff's proposed Bivens claims against Rivera in his individual capacity are futile because they fail to state a claim; and (5) if Plaintiff is permitted to proceed with his Bivens claims, Rivera is protected by qualified immunity.

II. Standard of Review

Fed. R. Civ. P. 15(a)(2) provides that leave to amend a complaint shall be freely given by the court. However, amendment of a complaint is not an absolute right. A trial court has discretion "whether or not to grant leave to amend, and its discretion is not subject to review on appeal except for abuse of discretion." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (per curiam) (internal citations and quotation marks omitted). Among other reasons, courts will deny a motion for leave to amend the complaint if they find the amendment is futile. See Patane v. Clark, 508 F.3d 106, 113 n. 6 (2d Cir. 2007) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L.Ed.2d 222 (1962)); Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir. 1996) ("Where it appears that granting leave to amend is unlikely to be productive, it is not an abuse of discretion to deny leave to amend."). An amendment is considered futile if, for example, it could not defeat a motion to dismiss for lack of subject matter jurisdiction. See Smith v.Everson, No. 06-CV-0791, 2008 WL 818512, at *4 (E.D.N.Y. Mar. 21, 2008); Latino Quimica-Amtex S.A. v. Akzo Nobel Chemicals B.V., No. 03-CV-10312, 2005 WL 2207017, at *13 (S.D.N.Y. Sept. 8, 2005); Chan v. Reno, 916 F. Supp. 1289, 1302 (S.D.N.Y. 1996). A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. See Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002); Malik v. Meissn er, 82 F.3d 560, 562 (2d Cir. 1996). The court may consider affidavits and other materials outside of the pleadings that support or oppose subject matter jurisdiction. See Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).

Amending a complaint is also futile if the proposed amended complaint cannot survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss. See Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002). When a court considers whether an amendment is futile, it uses "the same standard as those governing the adequacy of a filed pleading." Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991). When considering a Rule 12(b)(6) motion, the court...