Colon v. Annucci

Decision Date28 September 2018
Docket NumberNo. 17-CV-4445 (KMK),17-CV-4445 (KMK)
Citation344 F.Supp.3d 612
Parties Armando COLON, Plaintiff, v. Anthony J. ANNUCCI, Commissioner; Supt. Joseph Bellnier, Deputy Commissioner; Donald Venettozzi, Director of Special Housing and Inmate Discipline; William F. Keyser, Superintendent; Edward Burnett, Deputy Superintendent; Henry Moore, Deputy Superintendent for Administrative Services; Anthony Polizzi, Commissioner's Hearing Officer; Wayne Jordan, Correctional Lieutenant; and Kurtis Holzapfel, Correction Officer of the Office of Special Investigation, Defendants.
CourtU.S. District Court — Southern District of New York

344 F.Supp.3d 612

Armando COLON, Plaintiff,
v.
Anthony J. ANNUCCI, Commissioner; Supt. Joseph Bellnier, Deputy Commissioner; Donald Venettozzi, Director of Special Housing and Inmate Discipline; William F. Keyser, Superintendent; Edward Burnett, Deputy Superintendent; Henry Moore, Deputy Superintendent for Administrative Services; Anthony Polizzi, Commissioner's Hearing Officer; Wayne Jordan, Correctional Lieutenant; and Kurtis Holzapfel, Correction Officer of the Office of Special Investigation, Defendants.

No. 17-CV-4445 (KMK)

United States District Court, S.D. New York.

Signed September 28, 2018


344 F.Supp.3d 619

Armando Colon, Staten Island, NY, Pro Se Plaintiff

Daphna Frankel, Esq., Assistant Attorney General of the State of New York, New York, NY, Counsel for Defendants

OPINION AND ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE

Pro se Plaintiff Armando Colon ("Plaintiff"), formerly incarcerated at Sullivan Correctional Facility, filed the instant complaint ("Complaint"), pursuant to 42 U.S.C. § 1983, against New York Department of Correction & Community Supervision ("DOCCS") Commissioner Anthony J. Annucci ("Annucci"), Deputy Commissioner Joseph Bellnier ("Bellnier"), Director of Special Housing and Inmate Discipline Donald Venettozzi ("Venettozzi"), Superintendent William F. Keyser ("Keyser"), Deputy Superintendent Edward Burnett ("Burnett"), Deputy Superintendent for Administrative Services Henry Moore ("Moore"), Commissioner's Hearing Officer Anthony Polizzi ("Polizzi"), Correctional Lieutenant Wayne Jordan ("Jordan"), and Correction Officer of the Office of Special Investigation Kurtis Holzapfel ("Holzapfel"). (Compl. (Dkt. No. 2).) Plaintiff alleges that Defendants violated his rights under the First, Fourteenth, and Eighth Amendments by depriving him of

344 F.Supp.3d 620

due process during various disciplinary proceedings, retaliating against him for filing grievances, and sexually assaulting him. (See generally Compl.)1

Before the Court is Defendants' Motion To Dismiss the Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Notice of Mot. (Dkt. No. 36).) For the following reasons, Defendants' Motion is granted in part and denied in part.

I. Background

A. Factual Background

The following facts are drawn from Plaintiff's Complaint and the exhibits attached to it, (Compl.), and papers submitted in response to Defendants' request for a pre-motion conference, (Letter from Pl. to Court (Dec. 11, 2017) ("Pl.'s Obj. Letter") (Dkt. No. 22) ), and are taken as true for the purpose of resolving the instant Motion.2 At the time of the events relevant to this Action, Plaintiff was a prisoner incarcerated at Sullivan Correctional Facility ("Sullivan"), housed in "the D-North Housing Block for Sensorial Disable[d] Inmates." (Compl. 3.)

On the morning of April 16, 2015, while Plaintiff was on callout at the inmate law library, Sergeant Raykoff ordered Correction Officer ("C.O.") Burns to search Plaintiff's cell, "allegedly on the basis of [c]onfidential [i]nformation from [c]onfidential [s]ources." (Compl. 9 ¶ 1.) Plaintiff was unable to observe the search, but Burns allegedly discovered contraband, and Plaintiff was charged with disciplinary inmate rule violations, including "Possessing Information relating to another Inmate's Crime, Improper Legal Assistance[,] and Possession of another Inmate's Affidavit." (Id. ¶ 2.) On April 28, 2015, Plaintiff had a Tier II Disciplinary Hearing before Defendant Jordan, a Hearing Officer, regarding these charges. (Id. ¶ 3.)3 Jordan found Plaintiff guilty as charged and imposed 30 days of keeplock confinement and corresponding loss of privileges as punishment. (Id. ) Plaintiff administratively appealed, and on May 6, 2015, the Tier II Hearing Disposition was affirmed by Captain Gary Sipple, Acting Deputy Superintendent for Security Services. (Id. ¶ 4.)

On August 11, 2015, Plaintiff filed an Article 78 Petition in New York Supreme

344 F.Supp.3d 621

Court seeking review, reversal, and expungement of these disciplinary charges from his disciplinary record. (Id. ) Specifically, Plaintiff argued in his Petition that Jordan failed to give a written explanation for denying Plaintiff's request for certain witnesses to testify at the hearing. (Id. 9– 10 ¶ 5.) The Assistant Attorney General defending against Plaintiff's Article 78 Petition, J. Gardner Ryan, read Plaintiff's Tier II Hearing record and concluded that the disposition should be administratively reversed and expunged from Plaintiff's disciplinary record. (Id. 10 ¶ 6.) He therefore contacted DOCCS, which agreed to reverse and expunge the disposition, and did not submit a response to Plaintiff's Article 78 Petition. (Id. ¶¶ 6–7; Compl. Ex. C.)4 The Article 78 case was thus closed. (Compl. Ex. B (letter from clerk of New York Supreme Court stating case is closed).) Plaintiff also filed an inmate grievance complaint and ultimately exhausted his administrative remedies regarding the Tier II Hearing deprivations. (Compl. 10 ¶ 8; Compl. Ex. A (Central Office Review Committee Affirmance).)

On the afternoon of May 4, 2005, Sergeant LeConey ordered C.O. Genovese to search Plaintiff's cell. (Compl. 17 ¶ 9.) Genovese allegedly discovered a weapon beneath the foot of Plaintiff's bed and a second weapon hidden in Plaintiff's radiator. (Id. ) After the weapons were photographed and secured, Genovese wrote a Misbehavior Report charging Plaintiff with violating Disciplinary Rule 113.10 for possessing a weapon. (Id. ) Plaintiff was transported to a Disciplinary Special Housing Unit ("SHU") the same day, where he was held in a pre-hearing solitary confinement. (Id. )

The next day, May 5, 2015, Plaintiff received a copy of the Misbehavior Report. (Id. ¶ 10.) Plaintiff also met with his assigned Employee Assistant, J. Dewitt ("Dewitt"), in preparation for a Tier III Disciplinary Hearing on the charges contained in the Report. (Id. ) Plaintiff asked Dewitt to obtain documents and interview several potential inmate witnesses who resided in the D-North housing block and to report back on his findings. (Id. ) Plaintiff "hoped to learn if any of the [w]itnesses had seen unauthorized persons enter his cell in his absence" and thus "could offer [t]estimony relevant to his [d]efense." (Id. ) Plaintiff identified inmates Lopez, Rivera, Shobey, Ramos, Romero, Morales, and Braun as potentially relevant witnesses. (Id. ) However, "[d]espite Plaintiff's clear instructions to ... Dewitt that he find out what they knew and had observed, [Dewitt] did not report back any substantive findings." (Id. at 17–18 ¶ 11.) Instead, Dewitt "advised Plaintiff [that] only some of the [i]nmates had agreed to [t]estify on his behalf," and otherwise "provided no information concerning the [w]itnesses['] knowledge of recent unauthorized entries of Plaintiff's cell." (Id. at 18 ¶ 11.)

The same day, the Tier III Hearing commenced before Defendant Moore, the Hearing Officer. (Id. ¶ 12.) Plaintiff pleaded not guilty. (Id. ) He then notified Moore that he was not satisfied with the assistance he received from Dewitt because, "among other failings, Dewitt did not question potential witnesses and report back on his findings as requested," so Plaintiff "could not anticipate the contents of their testimony and could not adequately prepare a defense." (Id. ) Plaintiff then "outlined the contour of his defense to ... Moore." (Id. ¶ 13.) Specifically, "[h]e denied knowingly possessing the weapon[s] recovered from his cell and asserted that someone unknown to him had planted them there without his knowledge or consent."

344 F.Supp.3d 622

(Id. ) He therefore "wanted to establish through inmate witnesses[ ] that another party had means and opportunity to enter his cell." (Id. ) Plaintiff further explained that he "knew better than to have [c]ontraband in his cell" after 40 years in prison. (Id. ) Moore agreed "that both lines of questioning would be relevant and material to the proceedings" but did not arrange for anyone to interview Plaintiff's requested witnesses and report back to him. (Id. at 18–19 ¶ 13.)

Moore elicited testimony from three of the eight individuals Plaintiff had identified to Dewitt: Ramos, Shobey, and Romero. (Id. at 19 ¶ 14.) Ramos testified that "Plaintiff's cell was routinely left unsecured in his absence for periods ranging from 5 to 15 minutes," and that "he had regularly seen other prisoners enter Plaintiff's cell while he was not present." (Id. ) "Shobey also confirmed that Plaintiff's cell was left open for 5 minutes, and sometimes longer, and said "he had seen someone recently enter Plaintiff's cell while he was not there," but could not verify if that person was carrying a weapon. (Id. ) "Romero similarly testified that the cell was often left unsecured for 5 to 10 minutes and that he had seen other prisoners[ ] enter Plaintiff's cell during those periods." (Id. ) However, none of these witnesses was "able to identify any of the unauthorized parties they had seen enter Plaintiff's cell," nor did any have "firsthand knowledge if those parties had been carrying or planting weapons in the cell." (Id. ) Moore then took testimony from C.O. Jackson, who stated that "Plaintiff's cell was generally left open for 3 to 5 minutes...

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