Madison v. Crowley

KEVIN MADISON, Plaintiff, v. SUPERINTENDENT CROWLEY, LIEUTENANT OLLES, SERGEANT ADINO,PRISON GUARD J. DIXON, PRISON GUARD M. CAVALLERO , Defendants.

Case # 19-CV-6554 FPG

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

May 18, 2020

DECISION AND ORDER

Pro se Plaintiff Kevin Madison, a state prisoner presently housed at the Orleans Correctional Facility, has filed an Amended Complaint ((Docket ("Dkt.") No. 13) and, with the Court's permission (Dkt. No. 16), a Supplemental Complaint (Dkt. No. 17) under 42 U.S.C. § 1983. He alleges claims against Superintendent Crowley, Lieutenant Olles, Sergeant Adino, Prison Guard J. Dixon and Prison Guard M. Cavallero. He also has submitted an application to proceed in forma pauperis (Dkt. No. 8)¹ and a motion to appoint counsel (Dkt. No. 12).

DISCUSSION

Because Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and filed the required authorization (Dkt. No. 8), he is granted permission to proceed in forma pauperis. Therefore, under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a), this Court must screen the Amended and Supplemental Complaints.

Section 1915 "provide[s] an efficient means by which a court can screen for and dismiss legally insufficient claims." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The Court shall dismiss a complaint in a civil action in which a prisoner seeks redress from a governmental entity, or an officer or employee of a governmental entity, if the Court determines that the action (1) fails to state a claim upon which relief may be granted or (2) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2). Generally, the Court will afford a pro se plaintiff an opportunity to amend or to be heard prior to dismissal "unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim." Abbas, 480 F.3d at 639 (internal quotation marks omitted). But leave to amend pleadings may be denied when any amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

I. Factual Allegations²

A. Amended Complaint

Plaintiff states that from May 15, through May 17, 2019, he was placed in SHU under a 72-hour investigation and was deprived of his due process rights. He filed a grievance challenging his unreasonable SHU confinement and gave Crowley "written notice" that he feared retaliation and needed safeguards. (Dkt. No. 13 at 3.) Plaintiff was subjected to retaliatory hazing by Dixon including unreasonable search and seizure, where his living quarters would be searched and he would not be given a "searched receipt," contrary to DOCCS directives. He was harassed, restrictedto the top bunk, his cube was vandalized, he was subjected to racial slurs, and comments about his hair. (Id.) Crowley failed to act to safeguard Plaintiff from retaliation by her staff. (Id.)

On July 8, 2019, Dixon "haze[d]" Plaintiff by yelling at him, insulting him and harassing him about his hair. (Id. at 4-5.) After arriving at his cube at the conclusion of programs, Plaintiff found that his living quarters were "vandalized." (Id.) Dixon destroyed his clippers, emptied his food onto the floor, ripped his photos, threw his clothes up and down the dormitory aisle and walked on them, read Plaintiff's legal documents which had been removed from a manila envelope, and were thrown all over the floor, and violated Directive No. 4910 which requires correctional officers to avoid damage or destruction to property when conducting searches . (Id. at 5, 7.) Dixon questioned Plaintiff about a radio with the wrong DIN number that was on Plaintiff's bed. (Id.) Plaintiff told Dixon that the radio was his and showed Dixon an I-64 Property Inventory Form that established his ownership. (Id.) Dixon asked Plaintiff, "So what are you going to do? File a grievance?" (Id.) Dixon paced inside of Plaintiff's cube as Plaintiff put his belongings away. (Id. at 6.) When other prisoners tried to help, Dixon "harassed" them. (Id.) When Plaintiff invoked his right to remain silent, Dixon falsified the "Cell Frisk Sheet" writing that he found a radio with no DIN number and an alpha sheet, and then threatened Plaintiff that he'd go to "the box" if he did not answer Dixon.

On July 9, 2019, Plaintiff was retaliated against for invoking his right to remain silent. Dixon wrote a false misbehavior report stating that Plaintiff was smoking in the bathroom. Dixon's false misbehavior report violated DOCCS employee rulebook—§ 3.4, Falsification of Records. Crowley allowed Dixon to falsify misbehavior reports even though doing so violated Directive No. 4932, which states that falsifying misbehavior reports as retaliation is prohibited. (Id. at 7.)

On July 11, 2019, Plaintiff was sent for a hearing regarding Dixon's false misbehavior report for smoking in the bathroom. (Id. at 8.) Olles, who was conducting the hearing, asked Plaintiff if he had any witnesses. Plaintiff told Olles he had eight witnesses to which Olles responded, "Dude are you f**king kidding me? It's only a Tier II smoking ticket, just take the ticket." (Id. at 8 (emphasis omitted).) Before he began recording the hearing Olles refused to call Plaintiff's witnesses finding them irrelevant. (Id.) After the recording started Plaintiff said on the record that Olles was biased and seeking to suppress his evidence. (Id. at 8-9.) Olles turned off the recording and adjourned the hearing, sending Plaintiff back to his dormitory. (Id. at 9.)

On July 12, 2019, Cavallero began to harass Plaintiff regarding his hair and grievance filing. (Id.) He questioned Plaintiff regarding a lawsuit against Dixon that he found during a search of Plaintiff's living quarters. (Id.) Cavallero directed Plaintiff to show him the lawsuit. (Id.) Plaintiff refused. (Id.) Later that day while Plaintiff was teaching a "business dynamics" course, he learned from other prisoners that Cavallero asked Adino for permission to search his living quarters, which she gave to Cavallero. (Id. at 10.) Plaintiff stopped teaching and, while walking back to his cube, stopped to file a grievance. When he got to his cube, Cavallero became very aggressive and told Plaintiff to "either give him [the] requested [legal] documents or he is going to trash [Plaintiff's] cube looking for [them]." (Id. at 10.) Plaintiff responded that the sun went down, and it was currently the Sabbath, and asked to be left alone. (Id.) Cavallero started laughing and calling Plaintiff a "Black Jew." (Id.) Plaintiff responded that it is a "shame" to be subjected to these "petty indignities" when he is trying to rehabilitate himself and prepare for reentry into society. (Id. at 10-11.) Cavallero started yelling and demanding to see Plaintiff's legal documents. (Id. at 11.) Cavallero directed Plaintiff to "unlock your sh*t," which he did, and Cavallero went straight to the manila envelope containing Plaintiff's legal work and began to slowly read Plaintiff's legaldocuments. (Id.) Cavallero threw Plaintiff's legal work into the garbage, which he locked "in phone booth number 2," then gave Plaintiff a falsified search slip. (Id.)

On July 13, 2019, Plaintiff was interviewed by a female Sergeant regarding the grievance he filed on July 12, 2019 against Cavallero. (Id. at 11.) She said that she would talk to Cavallero and Dixon. (Id.)

On July 16, 2019, Plaintiff was called to the disciplinary office to finish the hearing on Dixon's falsified misbehavior report claiming that Plaintiff was smoking in the bathroom. (Id.) Plaintiff pleaded not guilty and stated on the record that the charges were false and intended as retaliation against Plaintiff for his grievance writing. (Id. at 12.) Plaintiff attempted to call his eight witnesses and attempted to read their statements into the record. (Id.) Olles took the statements, keeping Plaintiff from reading them all into the record, and would not give them back even after Plaintiff told Olles that they were needed as exhibits for the Court. (Id.) Olles only called two of Plaintiff's eight witnesses. Olles eventually stopped taping the hearing and tried to get Plaintiff to plead guilty, but Plaintiff refused. (Id.) Olles later falsified the "Statement of Evidence Relied Upon," writing that Plaintiff admitted to not following orders. (Id.) Olles refused to give Plaintiff the hearing tape number. (Id.) Olles found Plaintiff guilty and sanctioned him with thirty days under keeplock in SHU, which Plaintiff appealed. (Id. at 12-13.)

On July 29, 2019, Plaintiff was handcuffed and removed from his SHU cell and placed in a holding pen. (Id. at 13.) Sergeant Patti and other correctional officers ransacked his cell, read his legal documents and confiscated the § 1983 "petition" he was drafting for this action. (Id.)

On August 6, 2019, Plaintiff was released from SHU and placed back in a housing unit in which Dixon and Cavallero worked even though there was other space available. (Id.) Immediately after his shift began, Cavallero started harassing Plaintiff. Plaintiff stayed in his cube hoping toavoid Cavallero, but Cavallero came into Plaintiff's cube and "got into his face," telling him that there was no need for him to unpack because he was "just going to box him anyway." (Id. at 14.) Cavallero harassed Plaintiff about his hair and spitefully took Plaintiff's identification card "just to make [him] pay [t]wo U.S. Dollars for a new one," which he did on August 7, 2019. (Id.)

On August 8, 2019, Dixon tried to prevent Plaintiff from getting a food package, but when Plaintiff demanded to speak to a Sergeant, Dixon allowed Plaintiff to go get his package. (Id.) Plaintiff told Dixon that he did not have an identification card, which Dixon knew because Dixon and Cavallero are "coordinating the harassment tactics." (Id.) Plaintiff went to get his package. (Id.) When he returned, Dixon told Plaintiff that he was...