Fox v. Sheftic
| Decision Date | 03 October 2019 |
| Docket Number | 9:19-CV-498 (BKS/ATB) |
| Parties | JAVELL FOX, Plaintiff, v. BERNARD SHEFTIC, Defendant. |
| Court | U.S. District Court — Northern District of New York |
JAVELL FOX, Plaintiff, pro se
WILLIAM E. ARNOLD, IV, Asst. Attorney General for Defendant
This matter has been referred to me for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c). In this civil rights complaint, plaintiff raises various constitutional claims related to his hair cut which arose during his incarceration at Auburn Correctional Facility ("Auburn"). (Complaint ("Compl.") (generally). Presently before the court is the defendant's motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 6). Plaintiff has responded in opposition to the motion, and defendant has filed a reply. (Dkt. Nos. 10, 11). For the following reasons, this court will recommend dismissing all but one of the plaintiff's causes of action.
II. Judgment on the Pleadings
After the pleadings are closed, a motion to dismiss for failure to state a claim is properly brought as a motion for judgment on the pleadings pursuant to FED. R. CIV. P. 12(c). Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir. 1983) (citations omitted). See FED. R. CIV. P. 12(b), 12(c) and 12(h)(2). The motion for judgment on the pleadings is then treated according to the same standard as a motion to dismiss for failure to state a claim under Rule 12(b)(6). Id.
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," do not suffice. Id. (citing Bell Atl. Corp., 550 U.S. at 555). Plaintiff's factual allegations must also be sufficient to give the defendant "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp., 550 U.S. at 555 (citation omitted).
When ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 71 (2d Cir. 1995). The court must heed its particular obligation to treat pro se pleadings with liberality. Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005); Tapia Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (per curiam).
In deciding a motion to dismiss, the court may review documents integral to the complaint upon which the plaintiff relied in drafting his pleadings, as well as any documents attached to the complaint as exhibits and any statements or documents incorporated into the complaint by reference. Rothman v. Gregor, 220 F.3d 81, 88 (2dCir. 2000); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d at 72 ().
Finally, the court may consider matters of which judicial notice may be taken, such as public filings and administrative decisions. See Kavowras v. New York Times, Co., 328 F.3d 50, 57 (2d Cir. 2003) (). See also Combier Kapel v. Biegelson, 242 F. App'x 714, 715 (2d Cir. 2007) (); In re Howard's Exp., Inc., 151 F. App'x 46, 48 (2d Cir. 2005) (); Caro v. Fidelity Brokerage Services, LLC, No. 3:12-CV-1066, 2013 WL 3299708, at *6 (D. Conn. July 26, 2013) ().
III. Facts and Contentions
Plaintiff states that on August 29, 2018, he was incarcerated at Auburn, when defendant Sheftic approached plaintiff about his "Mohawk-style" hair cut. (Compl. Facts ¶ 1). Plaintiff states that he showed defendant Sheftic a court order from the Northern District of New York, "permitting plaintiff to have a [M]ohawk and restraining all state prison correction employees from punishing him for wearing his Mohawk hairstyle." (Id.)
Plaintiff claims that on August 30, 2018, defendant Sheftic stopped plaintiff in the yard and told plaintiff that defendant Sheftic knew "all about plaintiff's lawsuit and things won't be easy." (Facts ¶ 2). Plaintiff states that defendant Sheftic told him that he did "not care about his court order," and if plaintiff did not cut his hair, he would be keeplocked.1 Plaintiff stated that he refused to cut his hair and informed defendant Sheftic that plaintiff's "hair [was] a sincerely held religious symbol as well as a freedom of expression right under the Freedom of Speech." (Facts ¶ 3).
Plaintiff states that, notwithstanding this discussion, defendant Sheftic placed plaintiff in keeplock confinement. (Facts ¶ 4). Plaintiff states that he wrote to defendant Sheftic's supervisor and to the New York State Attorney General. (Id.) As a result, plaintiff was released from keeplock confinement on September 2, 2018, "per court orders given to the Attorney General." (Id.) Plaintiff states that there are other prisoners at Auburn who wear Mohawk hairstyles, who were seen by defendant Sheftic "every day," and who were "never" punished for their hairstyles.2 (Facts ¶ 5).
The complaint contains nine causes of action ("COA") against defendant Sheftic, several of which are duplicative, but the court will list them separately for clarity:
(Compl. at pp.2-4). Plaintiff seeks substantial monetary relief. (Id.)
IV. Eight Amendment/Harassment (COAs ## 1 & 2)
"To state an Eighth Amendment claim based on conditions of confinement, an inmate must allege that: (1) objectively, the deprivation the inmate suffered was 'sufficiently serious that he was denied the minimal civilized measure of life'snecessities,' and (2) subjectively, the defendant official acted with 'a sufficiently culpable state of mind . . . , such as deliberate indifference to inmate health or safety.'" Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (quoting Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)) (alterations in original). However, verbal harassment, no matter how inexcusable it may be, does not rise to the level of a constitutional violation. Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986); Ramirez v. Holmes, 921 F. Supp. 204, 210 (S.D.N.Y. 1996).
Plaintiff does not associate any of his COAs to specific factual allegations in his complaint. Thus, the court must attempt to make that determination. Plaintiff's first cause of action states that defendant Sheftic harassed plaintiff in violation of the Eighth Amendment. To the extent that plaintiff claims verbal harassment, associated with his factual allegations that defendant Sheftic verbally harassed plaintiff about his hairstyle, told him that he did not care about his lawsuit, or told him that things were not going to be "easy," this first COA must be dismissed, regardless of whether defendant Sheftic was harassing plaintiff about his hair or his religion. Verbal harassment is not a violation of the Eighth Amendment. Purcell, supra.
To the extent that plaintiff claims that his placement in keeplock somehow violated the Eighth Amendment, such a COA would have to be dismissed. At most, plaintiff was confined to his own cell for three days. Plaintiff has failed to allege any facts that plausibly allege that the conditions of his keeplock were 'sufficiently serious'to meet the objective prong of an Eighth Amendment claim.3 He has not alleged, plausibly or otherwise, that the conditions in his own cell were so bad that he was denied the minimal civilized measure of life's necessities.
Plaintiff's response to the defendant's motion argues that both the verbal harassment and the confinement violated the Eighth Amendment, citing Webster v. Fischer, 694 F. Supp. 2d 163 (N.D.N.Y. 2010). Webster does not stand for the proposition made by plaintiff. In fact, Webster states specifically states that section 1983 "is not designed to rectify harassment or verbal abuse." Id. at 187 (citing Purcell v. Coughlin, 790 F.2d at 265; Gill v. Hoadley, 261 F. Supp. 2d 113, 129 (N.D.N.Y. 2003); Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 474 (S.D.N.Y. 1998); Alnutt v. Cleary, 913 F. Supp. 160, 165-66 (W.D.N.Y. 1996) (citations omitted)). The court in Webster granted the defendants' motion for summary judgment. Id.
Plaintiff attempts to claim that the harassment and the confinement caused him "mental anguish." However, "mental anguish" is not the type of injury that would rise to the level of an Eighth Amendment violation. See Torres v. Aramark Food, No. 14-CV-7498, 2015 WL 9077472, at *8 (W.D.N.Y. Dec. 16, 2015) (); Webster, 694 F. Supp. 2d at 187 (...
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