Leneau v. Ponte

ERNEST LENEAU, Plaintiff, v. JOSEPH PONTE; KAREN COLLINS;SIMOD COVINGTON; SANDRA DEJESUS, Defendants.

1:16-cv-776-GHW

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

FILED: January 25, 2018

January 24, 2018

OPINION AND ORDER

GREGORY H. WOODS, United States District Judge:

Plaintiff Ernest Leneau was incarcerated at the Robert N. Davoren Complex ("RNDC") on Riker's Island from December 2015 to February 2016. During Plaintiff's time at the RNDC, he was subjected to a corrections officer's intimidation, racist act, and racial slurs. Plaintiff's personal property was also taken from his cell. Plaintiff filed a grievance against the racist officer, and three weeks later was transferred to another facility. Plaintiff filed this action, bringing various claims under 42 U.S.C. § 1983 against the corrections officers, the RNDC deputy warden, and the New York City Department of Corrections Commissioner. In his third amended complaint, Plaintiff seeks monetary damages and an injunction directing Defendants to adopt non-discrimination policies. Defendants have moved to dismiss Plaintiff's third amended complaint in its entirety. Because Plaintiff alleges sufficient facts to plausibly suggest that his transfer to another facility was in retaliation for the exercise of his First Amendment rights, Defendants' motion to dismiss Plaintiff's retaliation claim is DENIED. Defendants' motion to dismiss Plaintiff's other federal claims is GRANTED.

I. BACKGROUND¹

The events giving rise to Plaintiff's claims occurred while he was an inmate at the Robert N. Davoren Complex ("RNDC") on Riker's Island between December 2015 and February 2016. Third Amended Complaint, ECF No. 41 ("TAC") at 5.²

During Plaintiff's time at the RNDC, he was hired for an unspecified work detail by an officer who Plaintiff identifies as Officer Cody No. 1. TAC at 7. Plaintiff worked under Officer Cody No. 1 for three months, and, according to Plaintiff, Officer Cody No. 1 "never had any problem with" Plaintiff's work. Id. Plaintiff was also employed "in the same office" by an officer he identifies as Officer Cody No. 2. Id. Plaintiff worked for Officer Cody No. 2 for at least three months and "had no problem with working for her." Id. In addition to his work for Officer Cody No. 1 and No. 2, Plaintiff was also employed by Officer Jermiah in Plaintiff's "house unit 6 main." Id. Plaintiff believes that Officer Jermiah got him that job because Plaintiff "was a clean and good worker." Id.

A. C.O. Sandra DeJesus's Intimidation and Racism

At some point, while Officer Cody No. 2 "was still their [sic]," Corrections Officer ("C.O.") Sandra DeJesus returned to work. Id. C.O. DeJesus "didn't like [Plaintiff] because she didn't hire [Plaintiff] and because [Plaintiff] was black." Id. C.O. DeJesus was intimidating and committed a "racist act." Id.

Plaintiff informed other officers of C.O. DeJesus's "[i]ntimidation" and "racist act,"including Mr. Oliver, Captain Burk, a captain "in the visit," Dep. Glen, Officer Feilder, Officer Flord, and "Officer Q." Id. Officer Flord confirmed that Plaintiff "had a incounter [sic] with Ms DeJesus." Id. Officer Flord knew the encounter was "true" because she also "had a problem with [C.O. DeJesus]" when "she first started." Id.

On February 4, 2016, Plaintiff reported to Sady Sultan, M.D. at the RNDC during a medical visit that a "white female officer . . . [had] been discriminating him." TAC at 10. During another medical visit the next day, on February 5, 2016, Plaintiff reported to Elizabeth Neuland, LMHC that he had an "issue" with a Hispanic officer three weeks prior to the medical visit. TAC at 11. Plaintiff reported that he was told on February 5, 2016 to "pack up" because he threatened the Hispanic officer. Id. Plaintiff complained to Ms. Neuland that the Hispanic officer was "racist and used racist slurs against him." Id. Plaintiff also explained that he had filed a grievance against that officer. Id.

B. C.O. Simod Covington's Bullying

On an unspecified date, while Plaintiff was in court, C.O. Simod Covington went to Plaintiff's cell and packed up some of Plaintiff's things without a captain present, as Plaintiff alleges is required for an officer to visit an inmate's cell while the inmate is in court. TAC at 8.³ In the process, C.O. Covington "took" Plaintiff's wedding band "and left food in [Plaintiff's] cell for the other inmate to take." Id.

C.O. Covington also "bull[ed]" Plaintiff verbally on several occasions. Id. On February 2, 2016, C.O. Covington told Plaintiff, "I'm going to get you out of my mother fucking house." Id. C.O. Covington repeated this to Plaintiff later on that same day. Id. On February 10, 2016, C.O. Covington told Plaintiff to "pack up." Id.

C. Plaintiff's Transfer

Plaintiff was transferred from the RNDC to the Otis Bantum Correctional Center ("OBCC") in mid-February 2016. TAC at 9, 12.⁴ After his transfer, Plaintiff wrote a letter addressed to "Mr. Joseph Ponte, Commissioner." TAC at 9. In that letter, dated February 14, 2016, Plaintiff complained that "in your jail system a person can't make complaint about a racist [corrections officer], or write about a problem from a [corrections officer] because if you do you will be moved." Id. As Plaintiff explained, he was a "56 year old Black man that came from a good family but got involved with a [sic] officer who [Plaintiff] told [he] wanted to clean up [his] community but [the officer] turned on [Plaintiff]." Id. Plaintiff declared that he was "move [sic] out of RNDC because [he] wrote up a [sic] officer." Id. As Plaintiff explained, he was "the Inmate President," but the officers did not like what Plaintiff stood for. Id.

Despite Plaintiff's complaints that the officers at the RNDC were "like Tugs [sic], treating old men like little boys," Plaintiff expressed a desire to be transferred back to the RNDC. Id. He claimed that the OBCC housed too many gangs and that he could not "get on the phone when [he] want[ed] to." Id. Plaintiff complained, however, that Plaintiff concluded the letter by stating, "I know you can promote the creation of a fair, humane and [t]ruly rehabilitavie [sic] correctional system." Id.

On March 1, 2016, Plaintiff filed a grievance with the New York City Department of Corrections. TAC at 12. In that grievance, Plaintiff reported that "he was transferred out of RNDC while at court and his belongings were packed by an unknown individual." Id. Plaintiff also claimed that his wedding ring and medication were taken, and he sought their return. Id. The Inmate Grievance and Request Program ("IGRP") determined that no wedding ring was "found orvouchered," that Plaintiff would be advised to visit sick call for a prescription refill, and that Plaintiff's transfer "was not affected [sic] until February 16, 2016." Id.

D. Procedural History

Plaintiff filed this action pro se on February 2, 2016, naming as defendants New York City Department of Corrections Commissioner Joseph Ponte, Warden K. Collins, Deputy Warden Programs John/Jane Doe, and C.O. DeJesus. ECF No. 2. Plaintiff was granted leave to proceed in forma pauperis on April 5, 2016. ECF No. 4.

Defendants filed a motion to dismiss the complaint on August 15, 2016. ECF No. 19. On September 1, 2016, Plaintiff filed his first amended complaint, naming as defendants Commissioner Ponte, Warden Collins, C.O. DeJesus, and C.O. Cumberland. ECF No. 21. On September 12, 2016, Defendants' motion to dismiss was withdrawn as moot. ECF No. 22. On October 6, 2016, the Court granted Plaintiff leave to file a second amended complaint for the limited purpose of correcting the identification of the defendant identified as C.O. Cumberland. ECF No. 26.

On October 13, 2016, Plaintiff filed a second amended complaint. ECF No. 27. In that complaint, Plaintiff amended the defendant previously listed as C.O. Cumberland to C.O. Covington. Id. On October 27, 2016, Defendants Ponte, Collins, and DeJesus filed an answer to the second amended complaint. ECF No. 28.

On November 1, 2016, the Court ordered service of the second amended complaint on C.O. Covington. ECF No. 29. After prolonged efforts by the Department of Corrections to identify the defendant listed as C.O. Covington, on February 10, 2017, that defendant was identified as C.O. Simod Covington. ECF No. 39. On February 13, 2017, the Court directed Plaintiff to file a third amended complaint for the limited purpose of correcting the identification of that defendant. ECF No. 40. The Court also ordered that the third amended complaint would replace, not supplement, all prior complaints. Id.

Plaintiff filed a third amended complaint on March 10, 2017. ECF No. 41. Defendants fileda motion to dismiss the third amended complaint on June 22, 2017. ECF No. 53. Plaintiff did not oppose the motion. On August 10, 2017, the Court directed Plaintiff to file any opposition no later than September 1, 2017. ECF No. 56. Plaintiff filed no opposition, and the Court treats Defendant's motion to dismiss the third amended complaint as unopposed.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8 "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. at 678 (quoting Twombly, 550 U.S. at 570). "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." Id. (citing Twombly, 550 U.S. at 556). "To survive dismissal, ...