Bussey v. Phillips
| Decision Date | 10 March 2006 |
| Docket Number | No. 04 CIV. 6679(VM).,04 CIV. 6679(VM). |
| Citation | 419 F.Supp.2d 569 |
| Parties | Kevin BUSSEY, Plaintiff v. William PHILLIPS, Superintendent; Delores Thornton, Deputy Superintendent; David Thacker, Deputy Superintendent; and James Temple, Senior Counselor, Program Committee, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Kevin Bussey, Stormville, NY, pro se.
Jennifer L. Johnson, Atty. General of the State of New York, New York, NY, for Defendants.
DECISION AND ORDER
Pro se Plaintiff Kevin Bussey ("Bussey") brought this action pursuant to 42 U.S.C. § 1983, seeking to redress alleged violations of his constitutional rights under the First, Fifth, Sixth, Ninth and Fourteenth Amendments of the United States Constitution.1 Bussey also sought to redress an alleged conspiracy to violate those rights and intentional and negligent infliction of physical and emotional injury. The defendants, all employees of the New York State Green Haven Correctional Facility ("Green Haven") where Bussey is incarcerated, are William Phillips, Superintendent; Delores Thornton, Deputy Superintendent; David Thacker, Deputy Superintendent; and James Temple, Senior Counselor, Program Committee (collectively, "Defendants").
On November 30, 2004, Defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Bussey's Complaint. On March 31, 2005, the Court, given the extensive documentation Bussey attached to his complaint outside of the pleadings, converted the motion to dismiss into one for summary judgment under Federal Rule of Civil Procedure 56(c) and allowed the parties additional time to submit supplementary materials for the Court's consideration. Bussey and Defendants each submitted papers in support of or in opposition to the motion for summary judgment. In those papers Bussey also requested additional discovery, after the completion of which he sought to amend his complaint. By Order dated September 30, 2005, the Court granted Defendants' motion for summary judgment and denied Bussey's requests for discovery and leave to amend his complaint. The Court there indicated that its findings, reasoning and conclusions would be set forth in a subsequent Decision and Order.
Before the Court issued any subsequent Decision and Order, Bussey filed a notice of appeal to the Second Circuit, which ousted this Court of jurisdiction. See Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir.1992); Ryan v. United States Lines Co., 303 F.2d 430, 434 (2d Cir.1962). This Court, by order dated January 26, 2006, then sought a limited remand of the case so that it could issue its full Decision and Order articulating its findings, reasoning and conclusions. This Court also sought the limited remand because, in setting forth in further detail the basis for the September 30, 2005 order, the Court found that both the facts and the law required it to reconsider its earlier findings as to Bussey's equal protection claim. By letter dated January 27, 2006, Defendants indicated that they did not oppose the remand of the case or the Court's reconsideration of the claim, but requested that, should the Court ultimately vacate its previous dismissal of the claim, the Court schedule discovery, after which the Defendants be allowed to again move for summary judgment.
On February 24, 2006, the Second Circuit remanded the case and returned jurisdiction to this court.
Accordingly, this Opinion further explains the basis for the Court's September 30, 2005 ruling. Additionally, the Court has reconsidered its dismissal of Bussey's equal protection claim. Specifically, the Court finds as regards this cause of action that Bussey has stated a claim sufficient to survive a motion to dismiss. Given that Bussey has stated an equal protection claim and made at least two subsequent requests for discovery, summary judgment on Bussey's equal protection claim is not appropriate at this time. As will be explained in detail below, the Court therefore denies Defendants' summary judgment motion, without prejudice, only as to the equal protection claim and will grant Bussey limited discovery on this claim.
Since approximately 1997, Bussey has been incarcerated at Green Haven. From July 12, 1999 through November 3, 2002, Bussey was assigned intermittently to work in Green Haven's Industry Program, Corcraft Industries ("Industry Program") in the Chair Shop. During this period, Bussey also spent time in other programs or was idle. According to Bussey's disciplinary history, on January 26, 2000 Bussey was charged with violent conduct, threats, harassment and refusal to follow a direct order. As a result, from February 13, 2000 until March 5, 2000, Bussey was removed from the Chair Shop for disciplinary reasons. Bussey returned to the Chair Shop on June 5, 2000 after completing time at the Upholstery Shop. Bussey also spent two months in the Aggression Replacement Workshop from October 1, 2001 to December 2, 2001. Bussey was permanently removed from the Chair Shop in November 2002.
On September 20, 2002, Bussey, along with two other inmates, allegedly engaged in a violent assault against another inmate while in the Chair Shop. Correction Officer H. Panten ("Panten"), who was present at the time of the assault, reported that at approximately 9:30 a.m., Bussey punched another inmate from behind, causing the inmate to fall to the floor. Two additional inmates joined Bussey in kicking the fallen inmate. Panten ordered the inmates to stop fighting, all stopped and separated, a response team arrived and no further fighting took place.
Thereafter, Bussey was issued a misbehavior report for his participation in the assault. However, the misbehavior report was dismissed on a technicality. The computer printout of the hearing disposition has a handwritten note on it stating "dismissed procedural error." (See Hearing Disposition.) According to Defendants' counsel, the hearing officer had no memory of the situation and the reasons for the dismissal were not documented.
However, on October 15, 2002, Captain Haubert, a security supervisor from the Chair Shop, notified James Temple ("Temple"), Senior Counselor on the Program Committee, that although the misbehavior reports issued to Bussey and the other two inmates involved in the attack had been dismissed due to procedural error, for security reasons Bussey and the other two inmates could not return to the Chair Shop. The next day, Temple notified Bussey by memorandum that Bussey had been "temporarily suspended from [his] assignment in the Chairshop, due to Security" and that he should not return to his assignment until he had been seen by the Program Committee. The memorandum stated that Bussey would be scheduled to appear before the Program Committee in the near future.
According to Defendants, Bussey appeared before the Program Committee on or about November 3, 2002. Although Bussey does not indicate in the Complaint that he appeared before the Program Committee, in the grievance that he eventually submitted to protest his removal from the Chair Shop, and which he has attached to his Complaint, he states that he appeared before the Program Committee on October 29, 2002, and was denied his request to return to the Chair Shop. On November 3, 2002, Bussey was permanently removed from the Chair Shop.
Defendants assert that Green Haven's Policy and Procedure Statement No. 312 ("P & P 312") authorized the actions taken to remove Bussey from the Chair Shop. P & P 312 sets forth the nature and function of the Program/Classification Committee and procedures for its operation. Under P & P 312, "if a supervisor deems that there is sufficient documentation that it is in the best interest of the safety and security of any personnel in a work area (employee or inmates) to reassign an individual inmate ..., he/she shall submit a request in writing to the program committee for review of the situation and possible removal." (P & P 312 at V.C.2.) According to Defendants, this process authorized Haubert's and Temple's actions in removing Bussey from the Chair Shop.
The section of P & P 312 addressing "Security" provides two ways for the Program Committee to remove an inmate from a program assignment based on security, as opposed to performance. First, the Program Committee is authorized to remove the inmate from the program if the inmate is issued a misbehavior report and the disciplinary hearing-disposition recommends removal. (Id. at V.E ¶ 1.) Defendants admit that this paragraph did not apply to Bussey's situation, because the misbehavior report was dismissed on a technicality, and thus the disciplinary hearing did not result in a recommendation to remove Bussey from the Chair Shop. However, P & P 312 also provides that
if, in the opinion of the inmate's supervisor, a situation arises which, while not constituting a direct threat to the safety and security of the area, nevertheless disrupts the operation of, or smooth functioning of that area, the supervisor may request program committee intervention via a memo. The memo should delineate the nature of the concern and the potential negative consequences to the area if the inmate's behavior continues. Program Committee will make an independent assessment of the situation and make a determination as to whether the inmate should remain or be removed and reprogrammed.
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