Lane v. Tilbe

DON B. LANE, also known as Donald B. Lane, Jr., Plaintiff, v. ADAM TILBE & MICHAEL KIRKPATRICK, Defendants.

Civ. No. 9:18-CV-438 (LEK/DJS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

October 29, 2018

APPEARANCES:

DON B. LANE

Plaintiff, Pro Se

Riverside Motel

Room #4

PO Box 22

Fultonville, NY 12072

BARBARA D. UNDERWOOD

New York State Attorney General

Attorney for Defendant Kirkpatrick

The Capitol

Albany, NY 12224

JOHNSON & LAWS, LLC

Attorneys for Defendant Tilbe

647 Plank Road, Suite 204

P.O. Box 270

Clifton Park, NY 12065

OF COUNSEL:

HELENA LYNCH, ESQ.

COREY A. RUGGIERO, ESQ.

DANIEL J. STEWART United States Magistrate Judge

REPORT-RECOMMENDATION and ORDER

I. BACKGROUND

Plaintiff filed a Complaint in this matter on April 11, 2018 pursuant to 42 U.S.C. § 1983, alleging that he was confined in the custody of New York State Department of Corrections and Community Supervision ("DOCCS") past his maximum expiration date. Dkt. No. 1, Compl., p. 4.¹ The Complaint alleges January 19, 2017 was that maximum expiration date, for a sentence that he had been serving at Otsego County Jail ("Otsego"). Id. On that day, he was brought to the booking area and told by Defendant Tilbe, a Lieutenant and Otsego's Jail Administrator, that he was to be transferred to Elmira Correctional Facility ("Elmira"). Id. at pp. 2 &4. Plaintiff explained to him that he was supposed to be released that day, but Defendant Tilbe told Plaintiff there was nothing he could do about it. Id. at p. 4. Plaintiff was then transferred to Elmira, where he was detained for twelve more days. During those twelve days, Plaintiff wrote to Defendant Kirkpatrick, Elmira's Superintendent, numerous times, requesting to be released, and never received a response. Id. at pp. 2 & 4.

On initial review of the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court identified Plaintiff's Complaint as asserting a Fourteenth Amendment due process claim and an Eighth Amendment cruel and unusual punishment claim. Dkt. No. 4, at p. 5. The Court found that Plaintiff's claims survived sua sponte review and required a response. Dkt. No. 4.

II. DEFENDANTS' MOTIONS TO DISMISS

On July 9, 2018, Defendant Kirkpatrick filed a Motion to Dismiss, asserting that Plaintiff failed to state a claim on which relief may be granted, and that Defendant Kirkpatrick is entitled to qualified immunity on Plaintiff's claims against him. Dkt. No. 16. In response, Plaintiff submitteda letter to the Court advising that he would not be responding to the Motion.² Dkt. No. 20. Defendant Kirkpatrick filed a reply in further support of his Motion. Dkt. No. 26.

On July 31, 2018, Defendant Tilbe filed a Motion to Dismiss pursuant to Rule 12(c). Dkt. No. 23. Plaintiff opposed the Motion, Dkt. No. 29, Pl.'s Opp., and Defendant Tilbe submitted a reply in further support of his Motion, Dkt. No. 31, Def. Tilbe's Reply.

A. Standard

On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). The trial court's function "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984)).

The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. See Retail Clerks Int'l Ass'n, Local 1625,AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 (1963). Nevertheless, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Therefore, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted).

A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the plaintiff's complaint includes "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. at 697 (citing Twombly). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678. This plausibility standard "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. In this respect, to survive dismissal, a plaintiff "must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 440 U.S. at 555). Thus, in spite of the deference the court is bound to give to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts [which he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged." Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). The process of determining whether a plaintiff has "nudged [his] claims . . . across the line from conceivable to plausible," entails a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. at 679-80.

Where, as here, the complaint was filed pro se, it must be construed liberally with "special solicitude" and interpreted to raise the strongest claims that it suggests. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). Nonetheless, a pro se complaint must state a plausible claim for relief. See Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009).

"Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents attached to the complaint, . . . matters to which the court may take judicial notice[,]" as well as documents incorporated by reference in the complaint. Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997) (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991)); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (citing FED. R. CIV. P. 10(c)).

As to Defendant Tilbe's 12(c) motion, "[j]udgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988) (citation omitted). In applying Rule 12(c), a court must utilize the same standard as that applicable to a motion under Rule 12(b)(6). The Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998); Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). Thus, the standard recited above applies to Defendant Tilbe's Motion as well.

B. Plaintiff's Eighth Amendment Claims

Defendants Kirkpatrick and Tilbe contend that Plaintiff has failed to state a claim for an Eighth Amendment violation because he failed to allege a sufficiently serious injury.³ Dkt. No. 16-1, Def. Kirkpatrick's Mem. of Law, pp. 3-6; Dkt. No. 23-1, Def. Tilbe's Mem. of Law, pp. 9-10. "To prevail on an Eighth Amendment claim, an inmate must first show that his injury is objectively a "sufficiently serious" one.'" Hayes v. Annucci, 2016 WL 1746109 (S.D.N.Y. Apr. 29, 2016) (citations omitted). Defendants contend that, as a matter of law, Plaintiff's unauthorized confinement for twelve days falls well short of a sufficiently serious injury to implicate Eighth Amendment concerns. Id. Defendant Kirkpatrick cites to a number of decisions from district courts within the Second Circuit holding that detentions of "several days," seventeen days, and twenty-one days beyond sentence expiration were not sufficiently serious. Id. at p. 4 (citing Moore v. Newton, 220 F. Supp.3d 275 (E.D.N.Y. 2016); Hayes v. Annucci, 2016 WL 1746109; Brunson v. Duffy, 14 F. Supp.3d 287 (S.D.N.Y. Mar. 31, 2014)). However, "this is not a settled issue." Akande v. United States Marshals Serv., 659 Fed. Appx. 681, 684 (2d Cir. 2016) (describing that, while a five day delay in release did not violate the Eighth Amendment, and a nine-month delay did violate the Eighth Amendment, a thirty-four day delay "falls somewhere between these two poles."). As such, the Court does not agree that it is settled in the Second Circuit that detaining an individual for twelve days past his maximum expiration date does not violate the Eighth Amendment as a matter of law, and the Court declines to make a determination that an unauthorized confinement of twelve days is nonviolative as a matter of law.

However, because the law is presently unsettled regarding at what point such an unauthorized detention may support an Eighth Amendment violation, Defendants are entitled to qualified immunity. "Under [Supreme Court] precedents, officers are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was 'clearly established at the time.'" District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howard, 566 U.S. 658, 664 (2012)). To be "clearly established," "existing law must have placed the constitutionality of the officer's conduct 'beyond debate.'" Ashcroft v. al-Kidd, 536 U.S. 731, 741 (2011). Indeed, the "legal principle must have a sufficiently clear foundation in then-existing precedent." Dist. of Columbia v. Wesby, 138 S. Ct. at 590. "The 'clearly...