Mercer v. Sullivan
| Decision Date | 26 December 2018 |
| Docket Number | 9:18-CV-1148 (MAD/ATB) |
| Parties | JAMES R. MERCER, JR., Plaintiff, v. ANN MARIE T. SULLIVAN, et. al., Defendants. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES:
JAMES R. MERCER, JR.
Plaintiff, pro se
Marcy Correctional Facility
P.O. Box 3600
Marcy, NY 13403
Plaintiff James R. Mercer, Jr. ("Plaintiff") commenced this action by submitting a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 ("Section 1983") together with an application to proceed in forma pauperis. Dkt. No. 1 ("Compl."), Dkt. No. 2 ("IFP Application"). By Decision and Order filed October 22, 2018 (the "October Order"), Plaintiff's IFP Application was granted and the Court reviewed the sufficiency of the Complaint in accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A. See Dkt. No. 5. In the October Order, the Court dismissed the following claims, without prejudice: 1) Fourteenth Amendment due process claims; (2) Equal Protection claims; (3) Eighth Amendment claims; (4) First Amendment claims related to the grievance process; (5) retaliation claims based upon failure to investigate; (6) conspiracy claims; (7) state law claims; and (8) claims for declaratory and injunctive relief.1 Dkt. No. 5 at 27-28. The Court directed defendants Gavin Elder ("Elder"), Jean Burdick ("Burdick"), Bud. C. Ballinger, III ("Ballinger") and Megan X. Thomas ("Thomas") to respond to Plaintiff's First Amendment retaliation claims. Id. at 28. Plaintiff was advised that if he chose to pursue one or more of the claims dismissed without prejudice by the Court, he must file an amended complaint, which would supersede and replace the original complaint in its entirety. Id. at 28, n. 13. Plaintiff was cautioned that any amended complaint filed must also comply with the pleading requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure. Id. Summonses were issued to defendants and, on November 27, 2018, defendants filed acknowledgments of service. Dkt. Nos. 6, 10. Defendants have not yet answered the Complaint.
Presently before the Court is Plaintiff's Amended Complaint. Dkt. No. 8 ("Am. Compl.").
The factual recitation set forth in the Amended Complaint is substantially similar to what was set forth in the original Complaint. Compare Compl. with Am. Compl. The incidents that form the foundation for the Amended Complaint occurred while Plaintiff was at Marcy C.F. See generally, Am. Compl.2 The following facts are set forth as alleged byPlaintiff in the Amended Complaint.
In 2013, defendant Commissioner of the New York State Office fo Mental Health ("OMH") Ann Marie T. Sullivan ("Sullivan") entered into a contract with the New York State Department of Corrections and Community Supervision ("DOCCS") to provide a sex offender treatment program at Marcy C.F. Am. Compl. at 4. The program, entitled the New York State Office of Mental Health ("OMH") Prison-Based Sex Offender Treatment Program ("PBSOTP"), was a voluntary, outpatient program.3 Id. The PBSOTP operated without written or posted polices, procedures, rules and regulations. Id. at 5-6.
In August 2016, Plaintiff was involuntarily transferred to Marcy C.F. to participate in the PBSOTP. Am. Compl. at 5. OMH employees advised Plaintiff that he had a right to "refuse treatment" however, he was required to complete an "OMH PBSOTP Program Refusal Form" that advised Plaintiff of the possible consequences of his decision including: "negative decisions" by the Board of Parole and Time Allowance Committee and denial of privileges related to the Family Reunion Program ("FRP"). Id. Thus, Plaintiff participated in PBSOTP under "coercion and duress." Id.
On September 19, 2016, Plaintiff's assigned clinician, defendant LCSW Jean Burdick ("Burdick") prepared a Violent Risk Scale: Sex Offender ("VRSSO") Report. Am. Compl. at 14, 20, 21. Plaintiff objected to the report claiming that it contained false information. Id.Burdick provided Plaintiff with a form entitled "Patient/Resident Request for Amendment of the Mental Health Record." Id. Plaintiff completed the form, and upon Burdick's instructions, on October 13, 2016, Plaintiff filed the form with defendant Unit Chief Bud C. Ballinger, III ("Ballinger"). Id. On December 15, 2016, Plaintiff was interviewed by Burdick and Ballinger in relation to the request for an amendment to his VRSSO report. Am. Compl. at 14, 15, 22. Burdick and Ballinger provided a copy of Burdick's response indicating, "[y]our request will be filed as part of your mental health record; however, your request for correction/addendum has been denied." Id. The false information remains in Plaintiff's records. Id.
In October 2016, Plaintiff filed New York State Freedom of Information Law ("FOIL") requests seeking copies of the policies, procedures, rules, and regulations regarding PBSOTP. Am. Compl. at 5. For a fee, Plaintiff was able to purchase copies of policies, procedures, and forms. Id. at 5-6. Central New York Psychiatric Center ("CNYPC") Administrative Policy 2.9 provides:
It is the policy of CNYPC that OMH patients at CNYPC, and those located at DOCCS facilities, have the right to express concerns or complaints about patient care and/or treatment. A system has been put into place and is maintained that will ensure that every inmate-patient, or person acting on the inmate-patient's behalf, is aware of his/her right to submit complaints, that staff are knowledgeable of the complaint process, and that each complaint is recorded and investigated through resolution.
Pursuant to Policy 2.9, Plaintiff submitted a Formal Complaint on December 9, 2016 to defendant CNYPC Risk Management Specialist M. Bernstein ("Bernstein") that addressed the following issues: (1) the lack of written policies for the PBSOTP; (2) the lack of a formal grievance process; and (3) copying fees for treatment records. Am. Compl. at 12-13. WhenPlaintiff failed to receive a response, he sent five letters to Sullivan and defendant Deborah J. McCulloch ("McCulloch"), the Executive Director of CNYPC. Id. at 6, 7, 8, 13.
On February 23, 2017, defendant Inpatient Director of Risk Management Jill Grant ("Grant") sent a letter to Plaintiff, related to his December 2016 complaint, advising that McCulloch would review his case "in the very near future." Am. Compl. at 9, 13. On March 1, 2017, March 17, 2017, and April 7, 2017, relying upon Policy # 2.9, Plaintiff sent letters to Grant. Id. Plaintiff did not receive any response to his letter or his Formal Complaint. Id.
On June 2, 2017, Plaintiff provided Burdick with a copy of Plaintiff's "litigation," filed in New York State Supreme Court, Albany County, against Sullivan related to the lack of polices, procedures, rules, and regulations. Am. Compl. at 23. Shortly thereafter, Plaintiff met with Burdick and was advised that he must complete a "Behavior Contract" assignment. Id. Plaintiff told Burdick that he felt she was retaliating against him for filing litigation against Sullivan. Id. Plaintiff objected to the assignment and Burdick responded, "[y]ou do not have a choice." Id. On June 19, 2017, Plaintiff executed the Behavior Contract, under duress. Am. Compl. at 23. The contract provided, "Mr. Mercer will refrain from discussing programmatic grievances in treatment group settings at all times." Id.
On July 13, 2017, Plaintiff sought permission from the court to supplement his petition in his pending litigation against Sullivan. Am. Compl. at 23. Specifically, Plaintiff sought to include an additional retaliation claim against Burdick. Id. Plaintiff provided Burdick with copies of the documents filed with the court. Id. at 23-24.
On July 21, 2017, defendant Megan X. Thomas ("Thomas"), was assigned as Plaintiff's social worker. Am. Compl. at 25. On August 4, 2017, Plaintiff met with Thomas, Ballinger, Burdick, and defendant Elder ("Elder"), and received an updated BehaviorContract. Id. at 26. Plaintiff objected to the contract and claimed that it was issued in retaliation for Plaintiff's litigation. Id. Thomas responded, Id.
On August 25, 2017, Plaintiff met with Thomas and Elder. Am. Compl. at 17, 18, 26. Thomas and Elder expressed their concern with Plaintiff's complaints related to the PBSOTP. Id. Plaintiff asked Elder why he repeatedly "retaliated against [him] when I have a right to file complaints and seek judicial intervention?" Id. Elder responded that Plaintiff should not have filed complaints and written letters without speaking to Treatment Team Leaders. Id. Minutes before the meeting ended, Thomas told Plaintiff that he was being placed in an "out of group" period designated as "Reflections". Am. Compl. at 17, 18, 26. Plaintiff objected. Id. Elder told him that it was not a choice. Id. at 18. Plaintiff accepted the assignment and received a Behavior Contract from Thomas. Id. As he was leaving the room, Plaintiff placed the "Reflection" assignment and contract on the table, Elder stated, aggressively, "[y]our actions will have consequences." Am. Compl. at 17, 18, 26.
On August 29, 2017, Ballinger, Elder, and Thomas suspended Plaintiff from the PBSOTP. Am. Compl. at 15-18. The suspension was based upon: (1) "grievance thinking," (2) Plaintiff's execution of the Behavior Contract "under duress;" (3) Plaintiff's refusal to accept the Reflections period; and (4) Plaintiff's attempt to deliver a legal document with an assignment. Id. Plaintiff was not afforded any notice prior to being suspended. Id.
On September 4, 2017, Thomas prepared a VRSSO with false information. Am. Compl. at 28.
On October 5, 2017, Plaintiff returned to the program and received an updatedBehavior Contract from Elder and Thomas. Am. Compl. at 19, 27.
On October 13, 2017, pursuant to...
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