Kotler v. Daby
| Decision Date | 28 March 2013 |
| Docket Number | 9:10-CV-136 (MAD/CFH) |
| Parties | KERRY KOTLER, Plaintiff, v. WENDY DABY, Correction Officer, Adirondack Correctional Facility; PAUL WOODRUFF, Captain, Adirondack Correctional Facility; ARTHUR ROCQUE, Lieutenant Adirondack Correctional Facility; D. VENETTOZZI, Acting Director of Special Housing/Inmate Disciplinary Program for DOCS; NORM BEZIO, Director of Special Housing/Inmate Disciplinary Programs for DOCS, Defendants. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES:
NELSON BROWN
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
AARON M. BALDWIN, AAG
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Kerry Kotler, an inmate currently in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this action pursuant to 42 U.S.C. § 1983 alleging that Defendants violated his rights under the First andFourteenth Amendments to the United States Constitution. See Dkt. No. 1. On August 2, 2012, Defendants filed a motion for summary judgment. See Dkt. No. 52.
In a Report-Recommendation and Order dated December 3, 2012, Magistrate Judge Hummel recommended that the Court grant Defendants' motion and dismiss the complaint. See Dkt. No. 61. Currently before the Court are Plaintiff's and Defendants' objections to Magistrate Judge Hummel's Report-Recommendation and Order. See Dkt. Nos. 67, 68.
On May 11, 2007, Plaintiff was transferred to Adirondack Correctional Facility ("Adirondack C.F.") after being previously incarcerated at both Bare Hill Correctional Facility ("Bare Hill C.F.") and Franklin Correctional Facility ("Franklin C.F."). See Dkt. No. 1 at ¶¶ 6(A), 6(G). Upon admission, Plaintiff was housed in a dorm room referred to as "the Barn." See Dkt. No. 52-21 at 16-17. At the Barn, Plaintiff was assigned to a top bunk and given a locker for personal storage, which was placed at the foot of the bed. See id. at 17-21. The locker was approximately three feet by three feet, made of sheet metal with shelving inside, and stood thirty-five inches off the floor. See id. at 25. Plaintiff testified that when he transfers to a new correctional facility, he typically enlists another inmate to help him lift the locker in order to confirm that no contraband was left under the locker by another inmate. See id. Plaintiff kept personal property, including legal documents, in his locker. See id. at 28.
Plaintiff testified that on May 15, 2007, he was standing at the foot of his bed, pulling outlegal papers, when Defendant Daby, a corrections officer, asked him to place all of his personal belongings in his locker. See Dkt. No. 1 at ¶¶ 6(C)-(D); Dkt. No. 52-21 at 38-39. Plaintiff had approximately ten files under the bottom bunk bed that could not fit into the locker, about which he informed Defendant Daby. See id. at ¶ 6(F); Dkt. No. 52-21 at 29-30. Plaintiff approached Defendant Daby about the inability to fit all his files in the locker, while standing ten feet away from Defendant Daby's desk and off to its side. See Dkt. No. 52-21 at 65. Plaintiff alleged that Defendant Daby said she knew Plaintiff "had all the legal papers because he was a snitch and . . . that she knew all about him suing the guys over at Franklin and Bare Hill." See Dkt. No. 1 at ¶ 6(G) (internal quotation marks omitted). Defendant Daby also stated that "she did not want [a] snitch around [and] that she would have [Plaintiff] out of [Adirondack] by the end of the day," at which point she told Plaintiff to move away from her desk. See id. at ¶¶ 6(H)-(I) (internal quotation marks omitted).
Defendant Daby disputes the facts surrounding the alleged misconduct. Defendant Daby claims that the first time she had any knowledge of Plaintiff was on May 14, 2007, when she saw him sitting in a chair in the middle of a doorway to the Barn. See Dkt. No. 52-3 at ¶¶ 8-9. Defendant Daby instructed Plaintiff to move out of the doorway due to safety concerns. See id. at ¶ 11. On the morning of May 15, 2007, Defendant Daby was inspecting the Barn for cleanliness when she noticed that Plaintiff was sitting on his bed, writing on something. See id. at ¶¶ 14-15. Defendant Daby noted that the bed was unmade and that a pair of sneakers and other folders and papers were on the ground. See id. at ¶¶ 15-16. Defendant Daby instructed Plaintiff to clean the area, to which Plaintiff responded, "it's good enough, this is my dorm, get the fuck out before I throw you out." See id. at ¶ 17. Defendant Daby claims that Plaintiff jumped down from his bunk, shoved his locker at her, and said, "get the point bitch." See id. at ¶ 18. Plaintiff deniesDefendant Daby's version of the incident. See Dkt. No. 52-21 at 91. In fact, Plaintiff claims that it was physically impossible for him to push the locker towards Defendant Daby. See Dkt. No. 59-2 at 6. Shortly after Plaintiff returned to his cell, he was escorted to a holding cell in the Special Housing Unit ("SHU") and, later that day, transferred to Upstate Correctional Facility ("Upstate C.F."). See Dkt. No. 1 at ¶¶ 6(I)-(K).
On May 17, 2007, Defendant Daby issued Plaintiff a misbehavior report, which he contends to be false. See id. at ¶ 6(L)-(M). The report alleged that Plaintiff "threatened and harassed Daby; and in doing so created a disturbance by cursing and shoving a locker at her." See id. at ¶ 6(L). Specifically, the report charged Plaintiff with violating Rules 104.13 (creating a disturbance), 102.10 (threats), and 107.11 (harassment). See Dkt. No. 52-15 at 7. Plaintiff contends that Defendant Daby knew of his two prior lawsuits against prisoner officials at Bare Hill C.F. and Franklin C.F. Specifically, Plaintiff contends that Defendant Daby could have learned about his prior lawsuits by seeing related legal files in his possession or through institutional records. See Dkt. No. 59-2 at 6.
Defendant Daby denies having knowledge of Plaintiff's prior lawsuits against prison officials. Defendant Daby has emphasized that she has only worked at Adirondack C.F., never worked at Bare Hill C.F. or Franklin C.F., never had any discussions with other DOCCS employees concerning Plaintiff or his complaints, does not personally know any employees at Bare Hill C.F. or Franklin C.F., and has never reviewed documents concerning Plaintiff or his lawsuits. See Dkt. No. 52-3 at ¶¶ 2, 25-28, 33-34. Similarly, Corrections Officers Dann, Daily, and Charland, who were defendants in Plaintiff's prior lawsuit, stated that they have never spoken with Defendant Daby. See Dkt. No. 52-11; Dkt. No. 52-6 (Dann Decl.) at ¶¶ 1-6; Dkt. No. 52-5 (Daily Decl.) at ¶¶ 1-8; Dkt. No. 52-4 (Charland Decl.) at ¶¶ 1-8.
Plaintiff selected an assistant at Upstate C.F., non-party Officer Hebert, to help investigate and defend against Defendant Daby's misbehavior report. See Dkt. No. 1 at ¶ 6(N); Dkt. No. 52-21 at 93; Dkt. No. 52-15 at 6. Plaintiff asked Officer Hebert to obtain certain interviews, documents, and identifications. See Dkt. No. 52-15 at 20-22. Plaintiff admitted to receiving everything requested in the memorandum; he does not believe, however, that Officer Hebert interviewed any inmates who witnessed the incident on May 15, 2007. See Dkt. No. 1 at ¶¶ 6(P)-(R); Dkt. No. 52-21 at 94-98.
Defendant Rocque and non-party Officer McDougall were asked to assist Officer Hebert with investigative tasks. See Dkt. No. 52-17 at 13-17, 37; Dkt. No. 52-7 (Woodruff Decl.) at ¶ 13; Dkt. No. 52-8 (Rocque Decl.) at ¶ 4. Thus, on May 18, 2007, Defendant Rocque and Officer McDougall arrived at the Barn during "count time" and asked approximately twenty inmates whether they saw, heard, or remembered anything about Plaintiff and Defendant Daby during the morning of May 15, 2007. See Dkt. No. 52-8 at ¶¶ 6-8. Officer McDougall asked to talk to any such inmates and further stated that inmates could privately speak with Defendant Rocque at the Tier Hearing Office. See id. at ¶¶ 8-9. No inmate had any questions, identified himself as having witnessed anything surrounding the incident, or reported to the Tier Office. See id. at ¶¶ 12-13.
During the exchange between Plaintiff and Defendant Daby, there were several inmates present in the Barn. Plaintiff saw an inmate by the name "K.P.," who was later identified as Inmate Green. See Dkt. No. 52-21 at 42, 45. At a later time, after the disciplinary hearing was conducted, Plaintiff discovered that Inmate Johnson witnessed parts of the incident. See id. at 42; Dkt. No. 52-19 (Johnson Letter dated 10/1/2007) at 12-13. Inmate Johnson was returning to the Barn when he heard Plaintiff and Defendant Daby talking at Defendant Daby's desk. See Dkt.No. 52-19 at 12-13. Inmate Johnson noted that Plaintiff was neither loud nor disrespectful. See id. Moreover, Inmate Johnson claimed that had he known what Plaintiff was accused of, he would have testified that Plaintiff was innocent of those charges. See id.
Pursuant to Plaintiff's request, Defendant Rocque interviewed Inmate Green on May 18, 2007 at the Tier Hearing Office at Adirondack C.F. See Dkt. No. 52-8 at ¶ 15. Inmate Green stated that "[he couldn't] help Kotler with this matter" and signed a refusal form. See id. at ¶¶ 17, 19; Dkt. No. 52-15 at 28. Defendant Rocque stated that he asked Inmate Green to provide a specific reason for his refusal, but Inmate Green declined. See Dkt. No. 52-8 at ¶ 20. Also per Plaintiff's request, Defendant Rocque interviewed Inmate Johnson. See id. at ¶ 23. Although Inmate Johnson refused to testify and signed a refusal form indicating that he "did not see anything," see id. at ¶ 25; Dkt. No. 52-15 at 27, as indicated above, he later elaborated that Plaintiff did not perform the alleged misconduct and that he would have testified on his behalf had he known that Plaintiff was being punished for the alleged incident with Defendant Daby.
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