Povoski v. Lacy

FRANK J. POVOSKI, JR., Plaintiff, v. STEVEN LACY, et al., Defendants.

No. 9:14-CV-97 (BKS/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

February 8, 2016

CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE

APPEARANCES:

Frank J. Povoski, Jr.

05-B-2531

Great Meadow Correctional Facility

Box 51

Comstock, New York 12821

Eric T. Schneiderman

Attorney General of the

State of New York

Attorney for Defendants

The Capitol

Albany, New York 12224-0341

OF COUNSEL:

TIFFINAY M. RUTNIK, ESQ.

Assistant Attorney General

REPORT-RECOMMENDATION AND ORDER¹

Plaintiff pro se Frank J. Povoski, Jr., an inmate who was, at all relevant times, in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants violated his constitutional rights under the First, Eighth, and Fourteenth Amendments. See Dkt. No.42 ("Am. Compl."). At all relevant times, plaintiff was incarcerated at Clinton Correctional Facility ("Clinton C.F."). Plaintiff commenced this action on January 29, 2014, seeking a declaratory judgment and injunctive relief, as well as compensatory and punitive damages. Dkt. No. 1 ("Compl.") at 32-34. After an initial review of plaintiff's complaint, Senior District Judge Lawrence E. Kahn dismissed certain claims without prejudice, and allowed plaintiff the opportunity to file an amended complaint. Dkt. No. 9 at 18. Plaintiff submitted a proposed amended complaint on August 1, 2014. Dkt. No. 30. After initial review of the amended complaint,² the following claims remain: (1) due process claims arising from a November 2010 hearing against defendants Corrections Captain ("Capt.") Steven Lacy, Corrections Officer ("C.O.") Patrick Summo, Director of Special Housing ("DSH") Albert Prack, and Superintendent ("Supt.") Thomas LaValley; (2) retaliation claims against defendants Capt. Lacy, Sergeant ("Sgt.") Thomas Tamer, C.O. Richard Mahuta, C.O. Brian Kelly, C.O. John Crusie, Lieutenant ("Lt.") William Allan, Supt. LaValley, C.O. James Pray, and Sgt. James Archambault; (3) conspiracy claims against Capt. Lacy, Supt. LaValley, C.O. Mahuta, Sgt. Tamer, C.O. Kelly, C.O. Crusie, C.O. Allan, C.O. Pray, and Sgt. Archambault; (4) denial of access to the courts claims against Capt. Lacy, and C.O. Allan; (5) conditions of confinement claims against Supt. LaValley, Capt. Lacy, and C.O. Allan; and (6) excessive force claims against C.O. Allan, C.O. Pray, and Sgt. Archambault. Dkt. No. 41 at 23-24. Presently pending is defendants' partial motion to dismiss pursuant to FederalRule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(6).³ Dkt. No. 65. Plaintiff opposes the motion and requests to file a Second Amended Complaint. Dkt. No. 103. For the following reasons, it is recommended that defendants' motion be granted in part and denied in part.

II. Background

The facts are reviewed in the light most favorable to plaintiff as the non-moving party. See subsection III(A) infra. Because defendants are moving to dismiss only a portion of plaintiff's claims, plaintiff's allegations are summarized below only to the extent that they are relevant to the pending motion.

A. Plaintiff's Recitation of Facts

1. Conspiracy to Discipline and Confine Plaintiff

In May 2010, plaintiff was elected to the Inmate Liaison Committee ("ILC"). Am. Compl. ¶ 9. The ILC "investigate[s] and facilitate[s] facility-wide grievances that effect the inmate population as a whole or part, and communicate[s] those grievances to administration . . . ." Id. Plaintiff alleges that, during his time as a member of the ILC, the ILC investigated, among other things, the death of an inmate, Leonard Strickland, that occurred at Clinton C.F. on October 2, 2010, as well as the alleged misappropriation of funds obtained through vending machine sales in the visiting room at Clinton C.F. Id. ¶ 10.

In November 2010, the ILC prepared eleven grievances to be submitted to theExecutive Team at Clinton C.F., which included defendants Supt. LaValley and Capt. Lacy. Am. Compl. ¶ 11. On November 22, 2010, the ILC met with the Executive Team to discuss the grievances, including the death of Strickland, and the misappropriation of the vending machine funds. Id. ¶ 12. During that meeting, plaintiff also complained that the ILC's requests to inspect the records from the vending machine sales were being ignored, and asked the Executive Team to have the records produced. Id. ¶ 14. Plaintiff also complained at this meeting that Inmate Account Statements were being discarded prior to being distributed to the inmates. Id. ¶ 15. Supt. LaValley allegedly told plaintiff that each individual inmate would need to request the reissue of their Inmate Account Statement, and gave plaintiff permission to draft a "prototype letter" to assist inmates in requesting the Statements. Id. On November 23, 2010, plaintiff prepared and sent Supt. LaValley a copy of the prototype letter. Id. ¶ 16.

On November 24, 2010, defendant C.O. Mahuta observed plaintiff providing the prototype letter to three inmates. Am. Compl. ¶¶ 17-18. C.O. Mahuta approached plaintiff and inquired about the letter. Id. ¶ 18. After plaintiff explained the purpose of the letter, C.O. Mahuta confiscated the remaining prototype letters. Id. ¶¶ 18-19. C.O. Mahuta then contacted defendant Sgt. Tamer and proceeded to the Disciplinary Office to inquire what charges he could bring against plaintiff based on his creation and possession of the prototype letter. Id. ¶¶ 20-21. Plaintiff alleges that at least one hearing officer in the Disciplinary Office told C.O. Mahuta that plaintiff had not violated any Standard of Inmate Behavior. Id. ¶ 21. Sgt. Tamer then allegedly told C.O. Mahuta about plaintiff's complaints and grievances, as stated at the November 22, 2010 ILC meeting, and that Supt. LaValley and Capt. Lacy wanted plaintiff to receive a Tier III misbehavior report, so that he could besent to the Special Housing Unit ("SHU") and removed from the ILC. Id. ¶¶ 22-23. C.O. Mahuta and Sgt. Tamer then issued plaintiff a misbehavior report using two charges, despite knowing that the charges were false. Id. ¶¶ 24-25.

Following Mahuta's confiscation of plaintiff's prototype letters on November 24, 2010, plaintiff proceeded to the scheduled ILC meeting on that date. Am. Compl. ¶ 28. At the ILC meeting, plaintiff received a letter, sent to inmate Hector Torres from a civilian, alleging that Capt. Lacy was a "Grand Wizard" in the local chapter of the Ku Klux Klan ("KKK"). Id. Plaintiff placed the letter in his ILC folder. Id. Upon plaintiff's return to his housing block, officers confiscated his ILC materials, including the KKK letter. Id. ¶ 31. The officers contacted C.O. Mahuta, who reviewed the papers, including the KKK letter, and forwarded the letter to Capt. Lacy and Sgt. Tamer for inspection. Id. ¶ 32.

Plaintiff alleges that, after the inspection of the KKK letter, Capt. Lacy, Supt. LaValley, Sgt. Tamer, and C.O. Mahuta hatched a plan wherein they would search plaintiff's cell with the purpose of discovering contraband, and if contraband were not found, they would plant it so that plaintiff would receive a rule violation. Am. Compl. ¶ 33. Plaintiff alleges that Sgt. Tamer asked defendants C.O. Kelly and C.O. Crusie to search plaintiff's cell and make sure they found "something substantial" such that plaintiff would receive a Tier III misbehavior report and receive SHU time. Id. ¶ 34. Sgt. Tamer also told C.O. Kelly and C.O. Crusie that he would provide them with contraband to plant in plaintiff's cell should they fail to find any contraband. Id. C.O. Kelly and C.O. Crusie agreed. Id.

C.O. Kelly and C.O. Crusie entered plaintiff's cell to perform a search at approximately 11:00 a.m. on November 24, 2010. Am. Compl. ¶ 35. During the search, plaintiff alleges that he observed C.O. Crusie leave plaintiff's cell and then return a shorttime later carrying rolled up papers. Id. ¶ 36. Later, Kelly issued a misbehavior report to plaintiff for his possession of escape paraphernalia, stating that he had discovered in plaintiff's cell a five-page pamphlet on how to pick locks. Id. ¶ 37.

During the afternoon of November 24, 2010, non-party C.O. Trombley and Sgt. Tamer escorted plaintiff to the SHU. Am. Compl. ¶ 41. Tamer said to plaintiff: "This is what you get for suing me and sticking your nose into things where it doesn't belong. . . Lacy is going to give you two years. I've already talked to him about it." Id. Following a disciplinary hearing, Capt. Lacy sentenced plaintiff to twenty-four months SHU confinement. Id. ¶48(b).

2. Conspiracy to Use Excessive Force/Use of Excessive Force

a. December 22, 2010 Incident

On December 22, 2010, while plaintiff was escorted to the hospital for "special watch," C.O. Allan and three unidentified officers punched plaintiff multiple times on his head, face, and body, and pushed him into a concrete wall while he was handcuffed and waist-chained. Am. Compl. ¶ 136. Plaintiff suffered bruising, contusions, and "other painful physical injuries." Id. Plaintiff alleges that, after the assault, C.O. Allan stated: "that will teach you for opening your mouth . . . and writing grievances." Id. ¶ 137.

b. January 26, 2011 Incident

On January 26, 2011, C.O. Pray confiscated plaintiff's legal papers for inspection. Am. Compl. ¶ 140. After reviewing the papers, C.O. Pray said to plaintiff: "So you are suing my buddy Kevin, we know how to fix inmates like you. . . ." Id. C.O. Pray and Sgt.Archambault then escorted plaintiff to his video-conference court appearance, and taunted plaintiff, stating that they would assault him after the appearance, and that they knew the "ideal place to assault inmates," the Lower A/B Block corridor. Id. While escorting plaintiff back to the SHU after his appearance, and while stopped in the Lower A/B Block corridor, Sgt. Archambault said to C.O. Pray: "go ahead, the hallway's clear." Id. ¶ 141. C.O. Pray then pushed plaintiff into a brick wall and...