CARTER HOWARD, 95-A-1559, Plaintiff, -against- FRANK HEADLY, SUPERINTENDENT; CORRECTION OFFICER DANIEL CRUM; KAY FIEGL-BOCK, SENIOR CHAIRPERSON OF THE PROGRAM COMMITTEE, Defendants.



Case No. 98-CV-2528 (FB)



UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK



72 F. Supp. 2d 118; 1999 U.S. Dist. LEXIS 16706



October 25, 1999, Decided







DISPOSITION: [**1] Defendants' motion to dismiss denied.









COUNSEL: CARTER HOWARD, Plaintiff, Pro Se, Attica, New York.


GARVIN V. SMITH, ESQ., Associate Attorney General, ELIOT SPITZER, ESQ., Attorney General of the State of New York, New York, New York, for Defendants.



JUDGES: FREDERIC BLOCK, United States District Judge.



OPINIONBY: FREDERIC BLOCK



OPINION:

[*120] MEMORANDUM AND ORDER


BLOCK, District Judge:

Plaintiff Carter Howard ("Howard"), an inmate in a New York State correctional facility, brings this civil rights action pro se pursuant to 42 U.S.C. § § 1983 and 1985, alleging that prison officials who required him to work beyond his physical capabilities violated his First, Eighth and Fourteenth Amendment rights. He seeks damages and injunctive relief. Defendants Frank Headly ("Headly"), Daniel Crum ("Crum"), and Kay Fiegl-Bock ("Fiegl-Bock") are employees of the New York State Department of Corrections ("DOC"). They move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim, and on qualified immunity grounds. For the reasons stated below, the Court denies the motion.

BACKGROUND

In considering a motion to [**2] dismiss pursuant to Rule 12(b)(6), the Court's task is "'necessarily a limited one.'" Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 62 (2d Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974)). "In ruling on [the] defendant[s'] motion, the court must accept as true all the factual allegations in the complaint and must draw all reasonable inferences in favor of the plaintiff." 128 F.3d at 63. In addition, because Howard is a pro se plaintiff, his pleadings must be read liberally. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 795 (2d Cir. 1999); see also Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). The Court should grant such a motion only if, after viewing the plaintiff's allegations in the most favorable light, it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999).

Accordingly, the following facts are drawn from Howard's complaint, and are accepted [**3] as true for the purposes of this motion: In 1997, Howard suffered back injuries while he was incarcerated in the Arthur Kill Correctional Facility ("Arthur Kill"), operated by DOC in Staten Island, New York. According to his doctor, Howard's resulting back condition, including sciatica, prevented him from doing strenuous work. In January 1998, Howard was assigned by the program committee, of which Fiegl-Bock was the chairperson, to serve as a sanitation worker in the prison. Howard told Fiegl-Bock of his medical condition, and she advised him that she would change his assignment if he provided the committee with medical documentation.

On January 12, 1998, Howard began his assignment, which was supervised by Crum, a correctional officer. The following day, Howard obtained a doctor's note indicating that he had a medical restriction which limited him to performing light duty tasks. He gave Crum a copy of the note, but Crum required Howard to continue working. While on sanitation duty, he was "forced to perform strenuous work tasks every day in pain and agony." Complaint, Facts, P 5. This work aggravated Howard's [*121] medical conditions, made it "very painful for him to walk," and "caused [**4] pain in his left arm." Complaint, Exhibit C. Howard complained about the assignment and working conditions to the Arthur Kill grievance committee, which considered inmates' complaints about prison conditions. The grievance committee recommended that he appear before the program committee for reassignment. The complaint does not state whether this appearance occurred, but, in any event, his work assignment was not changed.

On February 5, 1998, Howard injured his neck, right hand and left shoulder, and reinjured his back while working on the sanitation crew. He was sent to the hospital, and ordered by his doctor to use a sling and to take two weeks bed rest. On February 6, 1998, February 20, 1998, and March 23, 1998, Howard's doctor issued him "no-work" medical restrictions. Although Howard presented these restrictions to Crum and Fiegl-Bock, they required him to continue in the sanitation program. Crum told him that he was "faking" and that he "didn't want to hear it" when Howard told him about his medical restrictions. Complaint, P IV, 1, Facts, P 5. On various days, Howard did not appear for sanitation duty because he did not wish to perform the painful work.

In mid-March 1998, [**5] Crum issued Howard several misbehavior reports related to his failure to participate in the work program, many of which were later dismissed by a hearing officer who determined that Howard was not required to perform the sanitation work because of his medical restrictions. On March 27, 1998, Howard filed with the DOC Inspector General a complaint about his work assignment and misbehavior reports.

That same day, Crum issued Howard another misbehavior notice, which was endorsed by Fiegl-Bock. Howard alleges that Crum and Fiegl-Bock issued the misbehavior notices in retaliation for his complaints to them, the grievance committee, and the Inspector General. According to Howard, Headly--the Arthur Kill Superintendent--failed "to remedy an egregious wrong after learning of the violations and unlawful conduct of his subordinates." Complaint, P IV-A, 3.

At some point, Howard also submitted to the Arthur Kill grievance committee a grievance against Crum alleging retaliation and harassment based on the same facts alleged in the present complaint. At the time the complaint was filed, this grievance was still pending. Howard does not indicate whether he filed grievances against Fiegl-Bock or [**6] Headly.

The defendants move to dismiss the complaint in its entirety. However, in their memorandum of law, they address only the Eighth Amendment claims, and not the claims based on their alleged retaliation against Howard, claiming that: 1) the complaint alleges insufficient facts to set forth a violation of Howard's Eighth Amendment constitutional rights with regard to his work assignments; 2) defendants are entitled to qualified immunity with regard to the Eighth Amendment claim; and 3) the complaint fails to allege that Headly was personally involved in the alleged violations. Accordingly, the retaliation claim will not be considered a part of this motion.

DISCUSSION


I. Subject Matter Jurisdiction

Howard's complaint describes his efforts to avail himself of the grievance procedures which were available at Arthur Kill and through statewide DOC offices, such as the Office of the Inspector General. Howard does not, however, describe the remedies available to him, or whether he pursued those remedies to their full extent. The presence in the complaint of issues regarding administrative exhaustion are indicia of circumstances that raise concerns about the Court's subject [**7] matter jurisdiction. Because federal courts are under an independent obligation to examine their own jurisdiction, see FW/PBS, [*122] Inc. v. City of Dallas, 493 U.S. 215, 231, 107 L. Ed. 2d 603, 110 S. Ct. 596 (1990), the Court must sua sponte explore allegations that relate to its subject matter jurisdiction, see Presidential Gardens Assocs. v. United States, 175 F.3d 132, 140 (2d Cir. 1999) (an argument that subject matter jurisdiction is lacking may be raised at any time, by any party, or sua sponte by the court).

The language of the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a), suggests that the statute may restrict the federal courts' jurisdiction. The statute states: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). If the statute were jurisdictional, the Court would have a duty to examine whether Howard has complied with the statute before [**8] deciding the motion to dismiss, and would likely hold a hearing to determine if Howard had met his burden of establishing subject matter jurisdiction. See In re United States Catholic Conference, 824 F.2d 156, 162 (2d Cir. 1987), rev'd on other grounds, 487 U.S. 72, 101 L. Ed. 2d 69, 108 S. Ct. 2268 (1988) (court may conduct whatever proceedings are appropriate to determine whether it has jurisdiction); Kamen v. American Telephone & Telegraph Co., 791 F.2d 1006, 1011 (2d Cir. 1986) (same); Guadagno v. Wallack Ader Levithan Assoc., 932 F. Supp. 94, 95 (S.D.N.Y. 1996) (same).

The Second Circuit has not yet considered the jurisdictional implications of 42 U.S.C. § 1997e(a). However, the circuit courts that have addressed the issue--the Fifth, Sixth, Seventh and Ninth Circuits--have held that the administrative exhaustion provision of 42 U.S.C. § 1997e(a) is not a jurisdictional requirement. n1 See Rumbles v. Hill, 182 F.3d 1064, 1067-68 (9th Cir. 1999); Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 535-36 (7th Cir. 1999); Underwood v. Wilson, 151 F.3d 292, 294 (5th Cir. 1998), [**9] cert. denied, 143 L. Ed. 2d 1012, 119 S. Ct. 1809 (1999); Wright v. Morris, 111 F.3d 414, 421 (6th Cir.), cert. denied, 522 U.S. 906, 118 S. Ct. 263, 139 L. Ed. 2d 190 (1997). n2



n1 Additionally, in unpublished decisions, the Tenth Circuit has held that the PLRA does not impose a jurisdictional requirement. See Basham v. Uphoff, 1998 U.S. App. LEXIS 30999, No. 98-8013, 1998 WL 847689, at *3 (10th Cir. Dec. 8, 1998); Dickey v. Kennard, 156 F.3d 1243, 1998 WL 568026 (10th Cir. 1998).

n2 The district courts have split on the issue, although the majority of the decisions have held that the requirement is not jurisdictional. See Cooper v. Garcia, 55 F. Supp. 2d 1090, 1093-94 (S.D. Cal. 1999); Smith v. Stubblefield, 30 F. Supp. 2d 1168, 1170 (E.D. Mo. 1998); Harris v. Mugarrab, 1998 U.S. Dist. LEXIS 7087, 1998 WL 246450, at *2 (N.D. Ill. May 1, 1998); Lacey v. C.S.P. Solano Medical Staff, 990 F. Supp. 1199, 1201-07 (E.D. Ca. 1997); Palomino v. Stanton, 1997 WL 500099, at *2 (N.D. Cal. June 17, 1997). Those that have held that 42 U.S.C. § 1997e(a) imposes a jurisdictional requirement have done so summarily based on the face of the statute and have not provided extensive analysis. See Cheirs v. Postell, 1999 U.S. Dist. LEXIS 13395, 1999 WL 681501, at *1-*2 (N.D. Ohio Aug. 26, 1999); Navarrete v. MDC, 1999 U.S. Dist. LEXIS 5646, 1999 WL 294785 (E.D.N.Y. Mar. 19, 1999); Gibbs v. Bureau of Prison Office, FCI, 986 F. Supp. 941, 943-44 (D. Md. 1997); Hernandez v. Browman, 1997 WL 383155, at *1 (N.D. Cal. July 1, 1997); Morgan v. Arizona Dep't of Corrections, 976 F. Supp. 892, 895 (D. Ariz. 1997).


[**10]

In Underwood, the Fifth Circuit provided the best-expressed rationale for holding that 42 U.S.C. § 1997(e)(a) does not impose any jurisdictional limitations. The court explained that "[a] statute requiring exhaustion of administrative remedies may be jurisdictional if it is 'more than a codified requirement of administrative exhaustion' and contains 'sweeping and direct' statutory language that goes beyond a requirement that only exhausted actions be brought." Underwood, 151 F.3d at 294 (quoting Weinberger v. Salfi, 422 U.S. 749, 757, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975)). After analyzing statutory schemes which had been held to impose a jurisdictional exhaustion requirement, the court concluded [*123] that § 1997e(a), in contrast, contained "precisely the type of language held in Weinberger v. Salfi not to limit federal jurisdiction." Underwood, 151 F.3d at 294; see Wright, 111 F.3d at 420-21.

The Fifth Circuit also found support for its conclusion in 42 U.S.C. § 1997e(c)(1) and (2), which require a district court to screen prisoner complaints and dismiss those [**11] that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant immune from such relief. See 42 U.S.C. § 1997e(c)(1). That statute provides that a court may dismiss claims of these sorts without requiring the plaintiff to exhaust administrative remedies. See 42 U.S.C. § 1997e(c)(2). The Fifth Circuit concluded that a district court "would not be empowered to do so if the exhaustion provision deprived the court of jurisdiction over the action." Underwood, 151 F.3d at 295 (citation omitted).

It is assumed that the Second Circuit will concur, as the Court does, with the well-reasoned analysis of Underwood, and hold, as have all those circuit courts which have considered the issue, that the statute does not preclude subject matter jurisdiction. The Court, therefore, will proceed to address the defendants' motion to dismiss. n3



n3 The Court notes that the defendants have not moved to dismiss based on exhaustion grounds. See, e.g., Cruz v. Jordan, 80 F. Supp. 2d 109, 1999 U.S. Dist. LEXIS 11487, 98-C V-0363, 1999 WL 557519, at *3-*13 (S.D.N.Y. 1999) (discussing dimensions of § 1997(e)(a)). If the defendants make such a motion, the Court may then be required to decide whether Howard must plead administrative exhaustion in order to survive a motion to dismiss for failure to state a claim, see, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982) (administrative exhaustion is a condition precedent to a Title VII claim); Babrocky v. Jewel Food Co. & Retail Meatcutters, 773 F.2d 857, 864 (7th Cir. 1985) (same), or whether administrative exhaustion is an affirmative defense that is waived by the defendants' failure to raise the issue in their initial moving papers, see Perez, 182 F.3d at 536 ("Defendants may waive or forfeit reliance on § 1997(e), just as they may waive or forfeit the benefit of a statute of limitations.").


[**12]


II. Failure to State an Eighth Amendment Claim

The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 297, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991); Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). The Eighth Amendment's prohibition against cruel and unusual punishment includes an inmate's right to be free from conditions of confinement that impose "an excessive risk to [the] inmate's health or safety . . . ." Farmer v. Brennan, 511 U.S. 825, 837, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994); see Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). To establish an Eighth Amendment claim based on unsafe working conditions, a plaintiff must establish that 1) he was incarcerated under conditions which posed a serious risk of serious harm, and 2) prison officials acted with deliberate indifference to his health or safety. See Farmer, 511 U.S. at 834. Howard's claim may be analogized to a claim for inadequate medical care, [**13] which also requires proof of deliberate indifference. See Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (prisoner alleged Eighth Amendment claim when he alleged that prison guards deliberately ignored doctor's order that prisoner pursue exercise in prison gym).

"The deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994); see Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Under the objective standard, a plaintiff must allege a deprivation "sufficiently serious" to constitute a constitutional violation. Hathaway, 37 F.3d at 66 (quoting Wilson, 501 U.S. at 298). A plaintiff may satisfy the objective prong by alleging that his prison work duties created a serious risk of serious [*124] injury. Cf. Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989) (prisoner properly alleged an Eighth Amendment claim when he claimed that his work detail assignment seriously aggravated his serious physical condition); Baumann v. Walsh, 36 F. Supp. 2d 508, 513 (N.D.N.Y. 1999) (prisoner alleged Eighth Amendment [**14] claim when he alleged that he had been required to climb along top shelf of storage room); Thomas v. Coombe, 1998 U.S. Dist. LEXIS 411, 95-C V-10342, 1998 WL 20000, at *2 (S.D.N.Y. Jan. 20, 1998) (prisoner set forth Eighth Amendment claim when she alleged that she had been required to perform heavy kitchen work in contravention of doctor's orders); but see Wilson v. Johnson, 999 F. Supp. 394, 399 (W.D.N.Y. 1998) (granting summary judgment to defendants when prisoner's medical records did not show "his back problem was serious enough to prevent him from performing the tasks required of [his position as] a mess hall worker").

The subjective component of the Eighth Amendment claim goes to the defendants' "culpable state of mind." Hathaway, 37 F.3d at 66. As explained by the Court of Appeals, "deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm . . . ." Id. (citing Farmer, 511 U.S. at 835). In order for a prison official to act with deliberate indifference, he must know of and disregard an excessive risk to an inmate's health or safety. Id. The official must both [**15] be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id. (citation omitted).

Furthermore, in order to establish personal liability against a government official for a constitutional violation, a plaintiff must show that "the official, acting under color of state law, caused the deprivation of a federal right." Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). Accordingly, the personal involvement of a defendant in the alleged constitutional deprivation is a prerequisite to an award of damages under § 1983. See Snider v. Dylag, 188 F.3d 51, 1999 WL 635618 (2d Cir. 1999); Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). A defendant's personal involvement may be established by demonstrating that the defendant directly participated in an event, learned of the egregious wrong and failed to correct it, created or allowed a policy to exist that harmed the plaintiff, or acted with deliberate indifference or gross negligence in managing subordinates. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); [**16] Williams, 781 F.2d at 323.

By any fair reading of Howard's complaint he has satisfied the objective component of deliberate indifference by alleging that prison officials exposed him to a serious risk of serious injury. Howard alleges that because of his sciatica and injuries to his back and neck, he could not safely perform sanitation duties, and that when he was required to do so, he suffered pain and agony. Howard also alleges that he was injured on two different occasions while on sanitation duty, and that the prison physician had repeatedly ordered that he was not to be required to perform such work. Under these circumstances, if proven to be true, the sanitation duty was dangerous for Howard to perform.

As to the subjective component of deliberate indifference, Howard alleges that Crum and Fiegl-Bock had prior knowledge of his medical condition, that he advised them that he was medically unable to do such work, and that he showed them doctor's notes to support his claim. He specifically alleges that Crum told him that he was faking his disability, and that he did not care about his work limitations. Howard also alleges that defendant Headly was advised of Howard's [**17] circumstances but did not remedy the improper conduct of Crum and Fiegl-Bock. Certainly, such facts can demonstrate defendants' deliberate indifference to Howard's condition. [*125] The Court concludes that Howard has stated facts from which a finder of fact could infer the requisite scienter. See Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (denying motion to dismiss for failure to state a claim when prisoner alleged that he had produced to prison officers documentation of his special medical needs).

Accordingly, Howard alleges sufficient facts which, if proven true, would establish an Eighth Amendment claim. He also alleges that Headly acted with deliberate indifference when supervising Crum and Fiegl-Bock, and failed to correct Howard's problem even when he learned about it, which, if true, could serve to hold Headly personally liable. See Wright, 21 F.3d at 501. The motion to dismiss for failure to state an Eighth Amendment claim is denied.


III. Qualified Immunity

The State argues that the defendants are entitled to qualified immunity. "Qualified immunity shields officials 'from liability for civil damages insofar as their conduct does [**18] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir.1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). "A right is clearly established when 'the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right . . . . The unlawfulness must be apparent.'" Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)). When determining whether a right is clearly established, a district court should look to Supreme Court and Second Circuit precedent. See Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998).

The right to be free from cruel and unusual punishment--and more specifically, the right to work in a safe workplace--was "clearly established" at the time of the events alleged in the complaint. For example, in Gill v. Mooney, 824 F.2d 192 (2d Cir.1987), a case decided more than a decade before the incidents at issue in Howard's [**19] complaint, the plaintiff, a state prisoner, fell off a ladder and injured his back while working in a state shop. The inmate claimed that a corrections officer had ordered him to continue working on the ladder after he informed the officer that it was unsafe. The Second Circuit held that the plaintiff had demonstrated deliberate indifference because his allegations, when liberally construed, "involved more than ordinary lack of due care for the prisoner's interests or safety." Id. at 195 (quoting Whitley v. Albers, 475 U.S. 312, 319, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986)).

"Even where a right is clearly established, an official is entitled to qualified immunity nevertheless if 'it was objectively reasonable for the public official to believe that his acts did not violate that right[].'" Connell, 153 F.3d at 79 (quoting Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991)). Defendants do not offer any explanation as to why it would have been objectively reasonable for them to believe that their acts did not violate Howard's right to safe working conditions. The Court cannot fathom, in the context of this 12(b)(6) [**20] motion, how the defendants' actions were objectively reasonable in light of the repeated, explicit notice Howard allegedly provided to them regarding his medical inability to perform his sanitation duties. Accordingly, the defendants are not entitled to qualified immunity at this stage of the proceedings.

CONCLUSION

Therefore, the Court denies the defendants' motion to dismiss.

SO ORDERED.

FREDERIC BLOCK

United States District Judge


Dated: Brooklyn, New York

October 25, 1999

MICHAEL QUARTARARO, Plaintiff, -against- JAMES M. CATTERSON, District Attorney of Suffolk County; MARK COHEN, Chief Assistant District Attorney; DEMETRI JONES, and MICHAEL MILLER, Assistant District Attorneys; RAUL RUSSI, Chairman of New York State Division of Parole; MARTIN HORN, Executive Director of the New York State Department of Parole; WILLIAM K. ALTSCHULLER, Director of the Appeals Unit of the New York State Department of Parole; PATRICK HOY, Area Supervisor; PHILIP DELUCA, and JOHN CALLENDER, Senior Parole Officers; GERALD BURKE, THOMAS BIDDLE, MARIA RIVERA BUCHANAN, LEO LEVY, J. KEVIN MCNIFF, ANTHONY UMINA, BARBARA TREEN, DANIEL TAURIELLO, GEORGE KING, JULIAN ROSE, Parole Commissioners, and others, as employees of the Division of Parole; THOMAS A. COUGHLIN, Commissioner of the New York State Department of Correctional Services; JAMES F. RECORE, Director of Temporary Release Programs; BRIAN FISCHER, Superintendent of Queensboro Correctional Facility; ENOC ESTEVES, Deputy Superintendent; WILLIAM LESTER, Senior Counselor and Temporary Release Chairman; RUDOLPH F. JEFFREY, Correction Counselor; as employees of the Department of Correctional Services; WILLIAM G. MCMAHON, former Commissioner of the New York State Commission of Correction, Defendants.



93-CV-4059 (JS) (MDG)



UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK



73 F. Supp. 2d 270; 1999 U.S. Dist. LEXIS 17214



October 14, 1999, Decided







DISPOSITION: [**1] State Defendants' motion for reconsideration DENIED.









COUNSEL: For Plaintiff: Beth G. Schwartz, Esq., James A. Cohen, Esq., Lincoln Square Legal Services, Inc., Fordham University School of Law, New York, NY.


For State DOCS and Parole Defendants: Rebecca Ann Durden, Esq., Assistant Attorney General, New York State Department of Law, New York, NY.



JUDGES: Joanna Seybert, U.S.D.J.



OPINIONBY: Joanna Seybert



OPINION:

[*271] MEMORANDUM & ORDER


SEYBERT, District Judge:

Pending before the Court is the State Defendants' n1 motion for reconsideration of this Court's June 25, 1999 Order. For the reasons discussed below, the motion is denied.



n1 By Stipulation and Order dated September 7, 1999, all claims presented in the Third Amended Complaint were dismissed with prejudice as to defendants James M. Catterson, Jr., Mark D. Cohen, and Demetri Jones (the "District Attorney Defendants").


BACKGROUND n2



n2 Familiarity with the facts of this case is assumed. See Quartararo v. Catterson, 917 F. Supp. 919, 926-29 (E.D.N.Y. 1996); see also Quartararo v. Hanslmaier, 28 F. Supp. 2d 749 (E.D.N.Y. 1998), aff'd in part and rev'd in part, Quartararo v. Hanslmaier, 186 F.3d 91 (2d Cir. 1999).


[**2]

On December 24, 1998, the State Defendants moved for summary judgment on all [*272] remaining claims in this lawsuit. The Plaintiff cross-moved for summary judgment on his claim that his procedural due process rights were violated when he was removed from participation in the state's Temporary Work Release Program without notice and without being provided with a written statement of the reasons for his removal. See Third Amended Complaint, P 162(a-b). Only the procedural due process claim is relevant to the present motion.

In their motion for summary judgment, the State Defendants argued that the Plaintiff's procedural due process claim failed on two grounds: (1) the claim was barred by the holdings of the Supreme Court in Edwards v. Balisok, 520 U.S. 641, 137 L. Ed. 2d 906, 117 S. Ct. 1584 (1997), and Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994); and (2) the defendants were entitled to qualified immunity. See State Defendants' Memorandum of Law in Support of Motion for Summary Judgment, at 12, 19. Notably, the State Defendants did not move for summary judgment on this claim on the basis that they did not violate [**3] Plaintiff's procedural due process rights.

In his cross-motion, Plaintiff argued that his procedural due process rights were violated by his summary removal from the Temporary Work Release Program, without having received, inter alia, adequate advance notice of the February 12, 1992 Temporary Release Committee hearing, and a meaningful statement of reasons for his removal. See Plaintiff's Memorandum of Points and Authorities in Support of Motion for Partial Summary Judgment, at 1-2. Plaintiff also rebutted the Defendants' arguments that his claim was barred by Edwards and Heck, and disputed the Defendants' claim to qualified immunity. See id., at 6, 17.

At oral argument on June 25, 1999, the State Defendants conceded that Plaintiff's procedural due process claim was not barred by Edwards and Heck, in light of the then-recent Second Circuit decision in Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999). See Transcript of Oral Argument ("Transcript"), at 4. After hearing oral argument, the Court delivered its opinion from the bench. See Transcript, at 42-49. The Court noted that in their Answer, the State Defendants had not denied the [**4] Plaintiff's allegation that he was given no notice of the February 12, 1992 TRC hearing, but merely had denied any wrongdoing. See Transcript, at 47; see also State Defendants' Answer to Third Amended Complaint, P 100. The Court also pointed out that, in response to the Plaintiff's statement pursuant to Local Civil Rule 56.1, the State Defendants merely commented that they "disputed" Plaintiff's statements that he received no notice of the February 12, 1999 TRC hearing, and that he did not receive a statement of reasons for his removal from the program until July 1993. See Transcript, at 47.

Finding that the general denials found in the State Defendants' Answer and 56.1 Counter-Statement were insufficient to raise a genuine issue of material fact that would defeat summary judgment, the Court granted Plaintiff's cross-motion on the procedural due process claim, and correspondingly denied the State Defendants' motion on this claim. See Transcript, at 48. The remainder of the State Defendants' motion was granted in part and denied in part. The Court reiterated its holding in a summary Order issued the same day. See Order dated June 25, 1999.

The State Defendants [**5] now contend that the Court overlooked a material fact which, if it had been considered, would have affected the outcome of the Court's decision to grant summary judgment to the Plaintiff on the procedural due process claim. Specifically, the State Defendants argue that the Court misapprehended [*273] their Rule 56.1 Counter-Statement. See State Defendants' Memorandum of Law in Support of Motion for Reconsideration, at 4. The State Defendants argue that, if the Court properly had viewed the statement, the Court could not have granted summary judgment to the plaintiff on this claim.

LEGAL STANDARD

A motion for reconsideration is governed by Local Civil Rule 6.3. A motion under this rule is appropriate where a party believes that the Court has overlooked "matters or controlling decisions" that might have influenced the earlier decision. Local Civil Rule 6.3; see also Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999) (citing cases). Local Civil Rule 6.3 is narrowly construed, and consideration of a motion under the rule is committed to the sound discretion of the district court. Shamis, 187 F.R.D. at 151.

In keeping with [**6] its design to prevent re-litigation of matters already plainly reviewed by the Court, the rule also requires that a motion for reconsideration be served within ten days after the docketing of the determination of the original motion. Local Civil Rule 6.3. Moreover, no oral argument is available on a motion for reconsideration and no affidavits may be filed unless the court so directs. Id.

DISCUSSION


A. Violation of Local Rule 6.3

As a preliminary matter, the State Defendants point out in their reply memorandum of law that the Plaintiff has failed to comply with the strict mandates of Local Civil Rule 6.3. Therefore, the State Defendants argue that their motion for reconsideration should be granted, and that upon reconsideration, the Court should deny Plaintiff's motion for summary judgment on the due process claim.

Specifically, the State Defendants argue that the Plaintiff's opposition papers, consisting solely of an affidavit submitted by his attorney, do not comply with Local Rule 6.3. While the State Defendants are correct that the Plaintiff was not permitted to file an affidavit in opposition to the motion unless so directed by the Court, the proper remedy for [**7] this violation is not simply to grant the motion. Such a result would place undue importance on the technical requirements of the Court's rule and would prevent any meaningful review of the merits of the motion. Rather, the remedy for a violation of Local Rule 6.3 is limited to striking the affidavit and considering the motion for reconsideration based solely on the movant's submissions.

The Court did not grant permission to the Plaintiff to file an affidavit in opposition to the motion. Thus, the Court agrees with the State Defendants that the submission of an affidavit in place of a memorandum of law was improper. The Court therefore strikes the affidavit of Plaintiff's counsel, and declines to consider it in the determination of the motion.


B. Merits of the Motion for Reconsideration

An inmate in New York State "has a protected liberty interest in continuing in a work release program." Kim v. Hurston, 182 F.3d 113, 117, (2d Cir. 1999). This liberty interest has been clearly established law in New York since at least 1978, when the United States Court of Appeals for the Second Circuit issued it decision in Tracy v. Salamack, 572 F.2d 393, 395-96 (2d Cir. 1978). [**8] Kim, 182 F.3d at 120. Moreover, as pointed out by the Second Circuit, "the minimal procedural due process requirements of notice and reasons for terminating a protected liberty interest have long been established." Id. (citing Wolff v. McDonnell, 418 U.S. 539, 563-65, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Morrissey v. Brewer, 408 U.S. 471, 485-89, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972)).

[*274] Given the Second Circuit's reliance in Kim on both Wolff and Morrissey, it is clear that the due process "notice" requirement mandates that notice of the charges or reason for the hearing be written, and that such notice be provided to the inmate at least twenty-four hours in advance of a hearing. Wolff, 418 U.S. at 563-64. Additionally, the due process "statement of reasons" requirement demands that the decisionmakers provide a "'written statement . . . as to the evidence relied on and reasons'" for the action taken. Id. at 564 (quoting Morrissey, 408 U.S. at 489). As somewhat prophetically stated by the Supreme Court,


written records of proceedings will thus protect the [**9] inmate against collateral consequences based on a misunderstanding of the nature of the original proceeding. Further, as to the disciplinary action itself, the provision for a written record helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly.


418 U.S. at 565.

In relation to the "statement of reasons" requirement, and relevant to the present dispute, the Second Circuit has raised the bar even higher. "When procedural due process requires an explanation of the ground for termination of a liberty interest, it requires a statement of the actual ground, and if an initial ground is changed, the person deprived of liberty is entitled to know the new ground." Kim, 182 F.3d at 119. Thus, an individual who has been deprived of a protectable liberty interest is entitled to a complete and accurate statement of all the evidence considered by the decisionmakers, and all the reasons for the termination of that interest. Here, the State Defendants admit that, at the very least, Plaintiff was entitled to [**10] twenty-four hours notice of the TRC hearing and a statement of the reasons for his removal. See Transcript, at 5, 17, 31; see also Civil Pre-Trial Order, Schedule C, P 53. n3



n3 Plaintiff, citing Wolff and Morrissey, contends that apart from notice and a statement of reasons for his removal, he additionally was entitled to a reasonable opportunity to be heard; the opportunity to call witnesses; neutral and detached hearing officers; an opportunity to confront and cross-examine witnesses; and the assistance of counsel or a lay person. See Transcript, at 21; see also Plaintiff's Memorandum of Points and Authorities in Support of Motion for Partial Summary Judgment, at 1-2. The State Defendants disagree that these protections are constitutionally required. See Transcript, at 6. However, because only the issues of notice and a statement of reasons are before the Court on this motion, it is not necessary for the Court to decide whether an inmate is entitled to the additional protections that Plaintiff claims are required under the Fourteenth Amendment's Due Process Clause. But see Wolff, 418 U.S. at 566 ("we are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.").


[**11]

In relation to these procedural due process requirements, the State Defendants contended at oral argument that this case involves noting more than an "unfortunate set of timing." See Transcript, at 14. In relation to such timing, the State Defendants acknowledge that on February 11, 1992 Plaintiff appeared before the New York State Parole Board at Queensboro Correctional Facility. State Defendants' 56.1 Statement, P 18. The following day, February 12, 1992, Plaintiff was advised that he had been denied parole for an additional two years. Id., P 19. On the same day, Plaintiff was referred to the TRC because of his two-year parole hold. Id. The TRC apparently sensed a great deal of urgency regarding Plaintiff's parole hold, and brought Plaintiff before the committee the very same day. Id., P 28. By letter dated the same day, February 12, 1992, Plaintiff was advised that with defendant Superintendent Fischer's approval (also apparently obtained the same day), [*275] the TRC was recommending that Plaintiff be removed from temporary work release. Id., P 34. Within hours of the February 12, 1992 TRC hearing, Plaintiff was transferred from Queensboro to an upstate facility. [**12] Plaintiff's Rule 56.1 Statement, P 93; Civil Pre-Trial Order, Schedule C, P 57.

Given the rapid nature of these events, which included (1) a parole hearing; (2) a TRC referral; (3) a TRC hearing; (4) a TRC recommendation; (4) obtaining the superintendent's approval of that recommendation; (5) writing a letter to Plaintiff informing him of his removal from temporary work release; and (6) transporting Plaintiff upstate to another facility, it was impossible for the State Defendants to have given Plaintiff the constitutionally required twenty-four hour written notice of the TRC hearing. Nowhere do the State Defendants argue otherwise, and in fact, they concede this point. See Transcript, at 23-24; Civil Pre-Trial Order, Schedule C, P 54.

Rather, the heart of the present motion for reconsideration seems to lie with the "statement of reasons" requirement. However, because the State Defendants have conceded that they did not provide Plaintiff with twenty-four hours written notice regarding the TRC hearing, during which his continued participation in work release was in jeopardy, a constitutional violation occurred. An inmate must receive both notice and a statement of reasons [**13] for his removal. Wolff, 418 U.S. at 563-65; Morrissey, 408 U.S. at 485-89; Kim, 182 F.3d at 118, 120. There is no genuine issue of material fact in this record regarding the lack of notice provided to Plaintiff about the TRC hearing. This lack of notice, standing alone, violated the due process clause of the Fourteenth Amendment. See Wolff, 418 U.S. at 564; Kim, 182 F.3d at 118-19. Therefore, summary judgment properly was granted to the Plaintiff on this claim.

Nevertheless, the State Defendants argue that the Court improperly held that Plaintiff did not receive a statement of reasons for his removal from temporary work release. State Defendants' Motion for Reconsideration, at 4. The State Defendants claim that they properly refuted this factual allegation in their 56.1 Counter-Statement, which referred to their own 56.1 Statement. In particular, the State Defendants refer to paragraphs thirty-two and thirty-three of their 56.1 Statement:


The TRC believed that the stress associated with the community unrest that would be placed on plaintiff for an additional two years would not be in his best [**14] interest. Lester Aff. at P 10; DeLuca Aff. at P 13. Specifically, the TRC held: "the committee recommends that inmate Quartararo be removed from the Temporary Release Program. The committee believes that the best interest of the program, the community and the inmate would not be best served by the inmate remaining in Temporary Release. Due to the notoriety of the inmate's offense, and the current community's demonstrated concern, to place the inmate back into the community would place an undue level of pressure on him, and the program." Recore Aff., Exhibit A; Lester Aff. at P 10; Deluca Aff. at P 13.


State Defendants' 56.1 Statement, PP 32-33.

The State Defendants also cited paragraph thirty-four of their 56.1 Statement in their 56.1 Counter-Statement. This paragraph presented the following statement of fact:


By letter dated February 12, 1992, plaintiff was advised that the TRC, along with Superintendent Fischer's approval, was recommending that he be removed from TRP because "it is not in the best interest of the community and yourself in view of the fact that you have been held 24 months by the Parole Board." Lester Aff., Exhibit [B]. Defendant Director Recore [**15] approved plaintiff's [*276] removal from the TRP. Recore Aff. at P 14.


State Defendants' 56.1 Statement, P 34.

Plaintiff asserts that he was not provided with the reasons for his removal from the Temporary Work Release Program until July 1993, following his Freedom of Information request. Plaintiff's 56.1 Statement, P 85. The statement of reasons he received in July 1993 was a copy of the letter from defendant Lester, which was dated February 12, 1992. Affidavit of Michael Quartararo, P 54.

In this regard, the State Defendants argue that there is a genuine issue of material fact regarding whether Plaintiff was provided a statement of reasons for his removal from the Temporary Release Program. Simply stated, the State Defendants assert that Defendant Lester's February 12, 1992 letter constituted a statement of reasons for the removal, while Plaintiff claims he did not receive this letter until some fifteen months later.

However, even if the Court were to assume that the February 12, 1992 Lester letter did reach the Plaintiff, the letter fails to meet the constitutional requirement of a written statement as to the evidence relied on and the reasons for the Plaintiff's removal from [**16] the work release program. See Wolff, 418 U.S. at 565. The Lester letter stated only that Plaintiff was removed because his continued participation was not in the best interest of the community in light of his twenty-four month parole hold. Lester Affidavit, Exhibit B. The State Defendants admit, however, that in 1992, the mere fact that an inmate had been held by the Parole Board for a twenty-four month period was not, by itself, a sufficient reason to remove the inmate from the Temporary Work Release Program. Recore Affidavit, P 11. Therefore, the reasons stated in the Lester letter could not have constituted a complete and accurate statement of reasons for the Plaintiff's removal from work release. See Kim, 182 F.3d at 119.

Additionally, the Lester letter fails to point out that the TRC, according to its own report, considered both the notoriety of the Plaintiff's offense and the community's "demonstrated concern" in deciding to remove Plaintiff from the program. Recore Aff., Exh. A, page 3. The Lester letter also fails to include a statement of the evidence relied on by the TRC in making its decision. As a matter of law, the letter was constitutionally [**17] insufficient. See Wolff, 418 U.S. at 565 ("there must be a written statement by the factfinders as to the evidence relied on and reasons for the disciplinary action") (quoting Morrissey, 408 U.S. at 489); Kim, 182 F.3d at 119 (procedural due process requires "a statement of the actual ground" for termination of a liberty interest). Therefore, even if the State Defendants were correct that Plaintiff received the Lester letter on February 12, 1992, the letter was constitutionally deficient, a constitutional violation still occurred, and summary judgment properly was granted to the Plaintiff on the procedural due process claim. n4



n4 Of course, as noted by the Court at oral argument, there is still a question whether the State Defendants are entitled to qualified immunity. Namely, it is a question of fact for the jury whether the State Defendants' actions in removing Plaintiff from the work release program were objectively reasonable. See Transcript, at 44.


[**18]

CONCLUSION

For the reasons stated above, the State Defendants' motion for reconsideration is DENIED.

SO ORDERED.

Joanna Seybert, U.S.D.J.


Dated: Uniondale, New York

October 14, 1999