Moore v. Peters

• Decision Date: 13 March 2015
• Docket Number: No. 13–CV–6271 EAW.,13–CV–6271 EAW.
• Citation: 92 F.Supp.3d 109
• Parties: Kenneth E. MOORE, Plaintiff, v. Correctional Officer J. PETERS, Lieutenant Reynolds, Superintendent Ricky Barlett, Area Supervisor Philip Overfield, and Estate of Larry Caslin, Defendants.
• Court: U.S. District Court — Western District of New York

92 F.Supp.3d 109

Kenneth E. MOORE, Plaintiff

v.Correctional Officer J. PETERS, Lieutenant Reynolds, Superintendent Ricky Barlett, Area Supervisor Philip Overfield, and Estate of Larry Caslin, Defendants.

No. 13–CV–6271 EAW.

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

Signed March 13, 2015.

Kenneth E. Moore, Laurelton, NY, pro se.

J. Richard Benitez, NYS Attorney General's Office, Department of Law, Rochester, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

Plaintiff Kenneth E. Moore, a former parolee attending the Willard Drug Treatment Campus (“Willard”) and former inmate at Five Points Correctional Facility (“Five Points”), brings this action alleging violations of 42 U.S.C. § 1983, for violation of his Fourteenth Amendment due process rights and retaliation. (Dkt. 1). Currently before the Court are Plaintiff's motion for partial summary judgment and Defendants' cross-motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. 27, 32). For the following reasons, Defendants' cross-motion for judgment on the pleadings is granted in part and denied in part, and Plaintiff's motion for partial summary judgment is denied.

BACKGROUND

Plaintiff's claims arise from events that occurred at Five Points and Willard between January 3, 2011, and January 7, 2012. (Dkt. 1 at 2). Defendants are employees of Willard.¹ (Id. at 1–2). The following facts are taken from the allegations in Plaintiff's complaint.

On January 3, 2011, Plaintiff was placed on parole with the condition that he complete Willard's drug treatment program. (Id. at ¶ 8). Plaintiff arrived at Willard on January 25, 2011, with a target program completion date of May 3, 2011. (Id. ). Plaintiff's evaluations at Willard determined that Plaintiff did not have a history of drug or alcohol abuse. (Id. ). Plaintiff subsequently wrote to the New York State Office of Alcohol and Abusive Services, Department of Correctional Services, and the Division of Parole, to notify these entities that “his presence at Willard was problematic because he lacked a proper diagnosis pursuant to the DSM IV.”² (Id. at ¶ 9). Plaintiff's letter is attached as Exhibit A to his complaint.

Willard's Deputy Superintendent of Programs wrote to Plaintiff and advised him that he could sign out of Willard. (Id. at ¶ 10). The Deputy Superintendent's letter is attached as Exhibit B to Plaintiff's complaint. Plaintiff alleges that he did not sign out of Willard because “the onus was on the state to correct their error of maintaining [Plaintiff's] participation at Willard,” and because Plaintiff would “forfeit his liberty interest of being released into the community on May 3, 2011, if he were to sign-out of Willard on his own volition.” (Id. ). Senior Parole Officer Larry Caslin (“Caslin”) also responded to Plaintiff's letter, and told Plaintiff that “unless his mind, body, and soul conformed to the Willard philosophy he would make sure that plaintiff did not finish the program.” (Id. at ¶ 12).

On or about February 23, 2011, Plaintiff allegedly witnessed two correction officers assault another Willard participant. (Id. at ¶ 13). Plaintiff knew one of the correction officers as Correction Officer J. Peters (“Peters”) and submitted a “statement” to a Willard sergeant reporting the assault. (Id. ). Plaintiff's statement is attached as Exhibit C to the complaint. Over the following days, Plaintiff and others in his “platoon” discovered that defendant Peters was aware of Plaintiff's statement accusing him of assault. (Id. at ¶ 14). Plaintiff alleges that defendant Peters' demeanor toward Plaintiff became “hostile to the point that plaintiff felt compelled to tell other staff members ... that he felt that Defendant Peters was set to take revenge against plaintiff.” (Id. ).

Plaintiff alleges that on or about March 12, 2011, defendant Peters executed on his plan for revenge by drafting and submitting a fictitious misbehavior report against Plaintiff. (Id. at ¶ 15). The misbehavior report accused Plaintiff of six rule violations (id. ), and is attached as Exhibit D to Plaintiff's complaint. Defendant Peters also allegedly “isolated plaintiff away from his platoon and proceeded to try and provoke plaintiff by making racially incise remarks.” (Id. ). Plaintiff further alleges that defendant Peters told him that “notwithstanding the fact that his time at Willard was defacto over, that he, Defendant Peters wanted the opportunity to send plaintiff to the hospital as a bonus.” (Id. ).

Plaintiff alleges that he was subsequently taken to an isolation cell where he spent the night. (Id. at ¶ 16). The next morning, another correction officer came to Plaintiff's cell and served him with the fraudulent misbehavior report. (Id. ). The report stated that the other 49 members of Plaintiff's platoon witnessed Plaintiff's disruptive behavior. (Id. ). Plaintiff thereafter chose six of his platoon members to refute defendant Peters' allegations at any disciplinary hearing held as a result of the report. (Id. ).

Plaintiff alleges that he was “inexplicably” transferred to Five Points on the morning of March 13, 2011, notwithstanding the fact that he was a participant in the Willard program, and he “hadn't had his Tier hearing.” (Id. at ¶ 17).

Lieutenant Reynolds (“Reynolds”) presided over Plaintiff's Tier II hearing at Five Points. (Id. at ¶ 18). Plaintiff alleges that defendant Reynolds told him that the six witnesses Plaintiff had selected to testify would not be testifying, as the witnesses reported that they did not see Plaintiff's alleged disruptive behavior. (Id. ). Plaintiff alleges that defendant Reynolds became “reticent” when Plaintiff said “that was exactly the testimony he planned to draw-out from the 6 witnesses; that there was no disruptive behavior on the plaintiff['s] part.” (Id. ). Plaintiff also alleges that defendant Reynolds refused Plaintiff's request for an employee assistant to help Plaintiff prepare for his hearing. (Id. ). Defendant Reynolds sustained all six charges in the report. (Id. ). Plaintiff appealed and filed a grievance in relation to the fraudulent misbehavior report. (Id. ).

On March 17, 2011, the Willard Evaluation Review Committee (“ERC”) met to determine whether Plaintiff should remain at Willard. (Id. at ¶ 19). Defendant Caslin was the chair of the ERC. (Id. ). Plaintiff alleges that he was not informed that the hearing was taking place and was not present at the hearing. (Id. ). Plaintiff also was not informed of the accusations against him or given the opportunity to contest the accusations or to present mitigating evidence. (Id. ). Plaintiff alleges that he did not learn of the hearing until after it had occurred, when the ERC terminated Plaintiff from Willard. (Id. ). Superintendent Ricky Barlett (“Barlett”) and Supervisor Philip Overfield (“Overfield”) allegedly concurred in the ERC determination. (Id. ). The ERC evaluation review recommending Plaintiff's removal from Willard is attached as Exhibit E to Plaintiff's complaint. Plaintiff subsequently filed a grievance stating that the ERC violated his due process rights. (Id. ).

On April 13, 2011, Plaintiff's parole was revoked, and a 10–month assessment was imposed for his failure to complete the Willard program. (Id. at ¶ 20). Plaintiff subsequently filed a writ of habeas corpus in the Supreme Court for Seneca County on May 6, 2011, arguing that he was entitled to immediate release from prison because Willard is a liberty interest program, and he did not receive due process when he was terminated from the program and was retaliated against at Willard. (Id. at ¶ 21; Dkt. 1 at Ex. F). Plaintiff's writ was denied by both the New York State Supreme Court and the Appellate Division, Fourth Department. (Id. at ¶ 21). Plaintiff alleges that he is currently seeking leave to appeal to the New York State Court of Appeals. (Id. ).

On January 17, 2012, Plaintiff finished serving his ten-month time assessment, and was released back into the community from Bane Hill Correctional Facility. (Id. at ¶ 22). Plaintiff was subsequently in prison for parole violations. (Id. at ¶ 23).

PROCEDURAL HISTORY

Plaintiff filed his complaint on May 28, 2013, alleging violations of 42 U.S.C. § 1983 against defendants Peters, Reynolds, Barlett, Overfield, and Caslin, in their individual and official capacities, for violation of his Fourteenth Amendment due process rights and retaliation. (Dkt. 1). On July 28, 2013, Plaintiff's claims against Defendants in their official capacities were dismissed pursuant to the Eleventh Amendment. (Dkt. 7).³ On September 17, 2013, the summonses were returned unexecuted as to defendants Overfield and Caslin. (Dkt. 8).

On October 1, 2013, Assistant Attorney General J. Richard Benitez (“A.A.G. Benitez”) filed a “Suggestion of Death Upon the Record,” noting that defendant Caslin died on March 13, 2013. (Dkt. 11). The notice provided that if Plaintiff failed to make a motion for substitution of a party within 90 days, the claims against defendant Caslin would be dismissed pursuant to Fed.R.Civ.P. 25. (Id. ). On October 17, 2013, Plaintiff filed a motion for substitution of a party to replace defendant Caslin. (Dkt. 13).

On October 28, 2013, A.A.G. Benitez was directed to notify the Court by November 12, 2013, as to whether the Attorney General would represent defendants Caslin and Overfield, and to inform the Court of any names and addresses of any successors or representatives for those parties. (Dkt. 15 at 4). A.A.G. Benitez was also notified that the Suggestion of Death Upon the Record filed on October 1, 2013 (Dkt. 11), was “a nullity” because it did not comply with Fed.R.Civ.P. 25(a). (Dkt. 15 at 1–2).⁴

Plaintiff also moved for a temporary restraining order and preliminary injunction on October 28, 2013, arguing that two parole officers in Brooklyn, New York, were enforcing a special condition of release which required Plaintiff to enter and complete a drug treatment program, and that Plaintiff risks having...