Clarkson v. Goord

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: Sweet, D.J.
• Decision Date: 27 August 2014
• Docket Number: 91 Civ. 1792
• Citation: Clarkson v. Goord, 91 Civ. 1792 (S.D. N.Y. Aug 27, 2014)
• Parties: DORIS CLARKSON, et al., Plaintiff, v. GLENN GOORD, et al., Defendants.

DORIS CLARKSON, et al., Plaintiff, v. GLENN GOORD, et al., Defendants.

91 Civ. 1792

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

FILED: August 29, 2014

August 27, 2014

OPINION

APPEARANCES:

Pro Se

Reginald McFadden

DIN #95A6279

Attica Correctional Facility

639 Exchange Street

Attica, New York 14011

Attorneys for Defendants

ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

120 Broadway

New York, NY 10271

Sweet, D.J.

Reginald McFadden ("McFadden") pro se has moved under the June 6, 1996 Clarkson Consent Decree ("Consent Decree") and on the October 23, 2003 order (the "October 23 Order") in this action for order of civil contempt for violating the Consent Decree. Based on the facts and conclusions set forth below, the motion is denied.

Prior Proceedings

McFadden has filed three different versions of his motion for contempt, September 8, 2013, October 24, 2013 and December 2 6, 2013.

McFadden is an inmate who has been incarcerated in facilities of the New York State Department of Corrections and Community Supervision ("DOCCS") while serving an 89 year to life sentence for rape in the first degree, burglary in the first degree, robbery in the first degree, kidnapping in the first degree, aggravated sexual abuse in the first degree, assault in the second degree, grand larceny in the fourth degree, murder in the second degree (two counts), and criminal possession ofstolen property in the third degree. His motion papers appear to set forth the following allegations.

• In 2000/2001 he was designated as HL-10 (deaf) by an audiologist contracted by DOCCS, Keith Walsh ("Walsh"), and prescribed hearing aids. (October 24, 2013 Amended Affidavit ("October 2013 Affidavit") ¶¶ 8-10, 12; December 26, 2013 Affidavit ("December 2013 Affidavit") ¶¶ 1-2.)

• After Walsh examined him, DOCCS had a different audiologist conduct an examination to "undermin[e]" Walsh's diagnosis. (October 2013 Aff. ¶ 11.) The date of this examination, where it occurred, and who the audiologist was are not set forth.

• On February 12, 2007, he was allegedly assaulted by a corrections officer "due in part of [sic] [McFadden's] disability" and one of his hearing aids was allegedly damaged. (December 2013 Aff. ¶ 3.) The identity of this purported corrections officer, where the alleged assault occurred, and how these events concern the Consent Decree are not set forth.

• He appears to claim that there was a "practice or custom of officials destroying an inmate's hearing aids and eye-

glasses to prevent identifying attackers," but who was responsible for, or engaged in, the purported "practice or custom" in question is not set forth. (December 2013 Aff. ¶ 16.)

• Prior to October 2008, he had alleged problems with replacing damaged hearing aids and receiving replacement batteries while at Clinton Correctional Facility (located in the Northern District of New York) ("Clinton"). (October 2013 Aff. ¶¶ 12-14.) The identity of Clinton employees he believes were responsible is not set forth.

• In October 2008, he was allegedly transferred to Auburn Correctional Facility (located in the Northern District of New York) ("Auburn") without being examined by an audiologist. (October 2013 Aff. ¶¶ 14-15.)

• Prior to and through November 2008, an ear infection was allegedly not properly treated. (December 2013 Aff. ¶¶ 4-7.) Who was purportedly responsible for this alleged lack of proper treatment is not set forth.

• While he was at Auburn in 2010, audiologist Joseph Gullo ("Gullo") only replaced one hearing aid in a set that needed replacement. (October 2013 Aff. ¶ 16; December 2013 Aff. ¶ 9.)

• "While waiting hearing aids" (at Auburn), he was assaulted from behind by a mentally ill inmate and asserts that this assault was "due to the lack of proper hearing aids." (October 2013 Aff. ¶ 16; December 2013 Aff. ¶ 9.) After receiving a complete set of hearing aids it "was difficult to re-order batteries." (October 2013 Aff. ¶ 17.)

• While being treated for a "massive heart attack" at a State University of New York hospital during an unidentified timeframe (though presumably when McFadden was at Auburn), unnamed "DOCCS officials" removed his hearing aids "to prevent [him from] hearing their communication about defrauding the State over overtime." (October 2013 Aff. ¶ 18; December 2013 Aff. ¶ 17.) How long his hearing aids were allegedly removed from him is not set forth.

• In October 2011, unnamed officers (also presumably at Auburn) retaliated against him for complaining about the events described above by filing a false report (which was dismissed in 2012) and removing his hearing aids. (October 2013 Aff. ¶ 19.)

• On August 1, 2012, the same unnamed officers destroyed his hearing aids and filed an additional false report. (October 2013 Aff. ¶ 20.)

• To cover up "official misconduct," he was "labeled" as having a mental illness and was placed under mental health observation." (December 2013 Aff. ¶¶ 17-18, 32-37.) Who was responsible for these actions and how they related to the Consent Decree is not set forth.

• On or about August 10, 2013, "defendant Marinno" [sic], allegedly a Special Housing Unit ("SHU") counselor, failed to follow DOCCS' Directive 2612 in a manner not set forth. (December 2013 Aff. ¶ 21.)

• He was then taken to Southport Correctional Facility (located in the Western District of New York) ("Southport") where unnamed medical staff ignored his hearing loss and medical records were fabricated. (October 2013 Aff. ¶ 21.) How long his "hearing loss" was allegedly ignored, or any detail regarding his claim that medical records were fabricated, is not set forth.

• "Defendant" Bruce Blendon ("Blendon") was aware of his hearing problems when he was placed in disciplinary confinement (SHU) at Southport. (October 2013 Aff. ¶ 25.) How this constituted wrongdoing on Blendon's part

or how Blendon allegedly violated the Consent Decree is not set forth.

• "Defendants" Nurse Bunning ("Bunning") and PRA Graf ("Graf") ignored his Americans with Disabilities Act ("ADA") request for reasonable accommodations when he was returned to SHU and "defendant" Noeth¹ ("Noeth") attempted to conduct a Tier III disciplinary hearing, but that the hearing was ultimately delayed 109 days. (October 2013 Aff. ¶ 26.) No factual allegations describing how Bunning, Graf, or Noeth violated the Consent decree are set forth.² Allegations with respect to defendant "Sgt. Condon" and a defendant Correction Officer are set forth without detail. (December 2013 Aff. ¶ 30.)

• An ADA reasonable accommodation request was filed with "defendant" Brad Thompson ("Thompson") and "defendant" Dr. Rao who falsely stated that McFadden has "no hearing difficulty." (October 2013 Aff. ¶ 27.) No factual

allegations describing how either Thompson or Dr. Rao violated the Consent Decree are set forth.

• Despite Dr. Rao's "false" claim, he had McFadden examined by an audiologist twice. (October 2013 Aff. ¶ 28.) No factual allegations describing how these alleged actions violated the Consent Decree are set forth.

• On September 25, 2012, "defendant" audiologist Gullo "conspire[d]" with unnamed "others" by prescribing a hearing aid for McFadden, but not certifying him as HL-10 (deaf) so that McFadden would not be a Clarkson class member. (October 2013 Aff. ¶ 29; see also December 2013 Aff. ¶¶ 21-23.) No factual allegations describing how Gullo violated the Consent Decree are set forth.

• On October 3, 2012, he provided a counselor (illegible name) with a copy of Walsh's 2001 findings, which the counselor never returned to him. (October 2013 Aff. ¶ 30.) No factual allegations describing how this counselor violated the Consent Decree are set forth.

• On August 8, 2013, an ADA reasonable accommodation request for batteries and a "shake awake" alarm clock was denied by "defendant" Michalick ("Michalick"). (October 2013 Aff. ¶ 31.) No facts describing how this alleged action violated the Consent Decree are set forth.

• "Defendant" Bradt ("Bradt") violated Due Process in not following DOCCS Directive 2612 on an unidentified date at an unidentified location. (October 2013 Aff. ¶ 32.) No facts describing how Bradt violated the Consent Decree are set forth.

The instant motion was marked fully submitted on April 21, 2014.

Applicable Standard

This Court has stated "[t]he purpose of a civil contempt is to compel a reluctant party to do what was ordered of her." Figueroa v. Dean, No. 99-CV-12457, No. 99-CV-12458, 2002 WL 31426205, *4 (S.D.N.Y. Oct. 30, 2002). Courts are not "entitled to expand or contract the agreement of the parties as set forth in the consent decree." Berger v. Heckler, 771 F.2d 1556, 1558 (2d Cir. 1988). Courts must narrowly construe the terms of a consent decree, and not impose supplementary obligations on the parties. Barcia v. Sitkin, 367 F.3d 87, 106 (2d Cir. 2004).

"The imposition of a civil contempt order is a severe sanction subject to a higher standard of proof than the ^preponderance of the evidence' standard applicable to ordinary cases." King v. Allied Vision Ltd., 155 F.R.D. 440, 448 (S.D.N.Y. 1994). Rather, a plaintiff must prove a civil contempt with clear and convincing evidence. New York State Nat'l. Org. For Women v. Terry, 886 F.2d 1339, 1351 (2d Cir. 1989). A court's inherent power to hold a party in civil contempt should be exercised only when: (1) the order the party allegedly failed to comply with is clear and unambiguous; (2) the proof of noncompliance is clear and convincing; and (3) the party has not diligently attempted in a reasonable manner to comply. Id.; see also Scottish Air Int'l. v. British Caledonia Group, PLC, 867 F. Supp. 262, 266-67 (S.D.N.Y. 1994).

More specifically, paragraph 52 of the Consent Decree states in relevant part:

In an effort to avoid motions for contempt and enforcement, defendants DOC[C]S, OMH and Parole shall identify by title an ombudsperson responsible for handling requests for accommodations made by plaintiff class members through class counsel. Such requests shall be

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