Nieves v. Prack, 6:15-cv-06101 EAW

• Decision Date: 24 March 2016
• Docket Number: 6:15-cv-06101 EAW
• Citation: 172 F.Supp.3d 647
• Parties: Justo Nieves, Plaintiff, v. Albert Prack and Jackie Mackey, Defendants.
• Court: U.S. District Court — Western District of New York

172 F.Supp.3d 647

Justo Nieves, Plaintiff,

v.Albert Prack and Jackie Mackey, Defendants.

6:15-cv-06101 EAW

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

Signed March 24, 2016

Justo Nieves, Attica, NY, pro se.

Gary M. Levine, New York State Office of the Attorney General, Rochester, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD

, United States District Judge

INTRODUCTION

Pro se Plaintiff Justo Nieves (“Plaintiff”) commenced the instant action on February 25, 2015. (Dkt.1). The operative pleading is the Amended Complaint filed on April 15, 2015. (Dkt.5). Plaintiff alleges that he was deprived of his constitutional right to due process during his confinement at the Southport Correctional Facility. (Id. ). Plaintiff is currently housed at the Attica Correctional Facility. (Id ).

Currently pending before the Court are (1) Defendants' motion to dismiss the Amended Complaint or, in the alternative, for summary judgment (Dkt.9) and (2) Plaintiffs motion for appointment of counsel (Dkt.11). For the reasons set forth below Defendants' motion is denied as to the request for summary judgment and granted as to the request for dismissal. Accordingly, Plaintiff's motion for appointment of counsel is denied.

BACKGROUND

Plaintiff is an inmate formerly housed at the Southport Correctional Facility (“Southport”). Plaintiff's Amended Complaint (Dkt.5) is brought pursuant to 42 U.S.C. § 1983

and alleges that Plaintiff was deprived of his constitutional right to due process in connection with a disciplinary hearing at Southport.

Plaintiff alleges that on July 12, 2014, non-defendant Corrections Officer Gleason (“C.O. Gleason”) stopped a prisoner who was walking toward the recreation area and searched him approximately two cells away from Plaintiff. (Dkt. 5 at 6). According to Plaintiff, C.O. Gleason then came to Plaintiff's cell, placed him in handcuffs, and took him to the shower. (Id. ) The next day, Plaintiff alleges that he received two misbehavior reports (the “July 13th Misbehavior Reports”) stating that the prisoner walking towards the recreation area had passed a chicken bone to Plaintiff and that C.O. Gleason had found a “leafy substance” in Plaintiff's cell that was determined to be “drug contraband.” (Id. ).

Defendant Jackie Mackey, the Deputy Superintendent of Programs at Southport (“Deputy Superintendent Mackey”), allegedly began a disciplinary hearing related to the July 13th Misbehavior Reports on July 22, 2014. (Id. at ¶ 7). Plaintiff claims that at the disciplinary hearing, he objected to the handling and testing of the alleged drug contraband, which Plaintiff maintains violated the procedures established by the New York State Department of Corrections and Community Supervision (“DOCCS”). (Id. at 8–9). According to Plaintiff, Deputy Superintendent Mackey was biased against him, failed to follow proper procedure, and ignored his objections. (Id. at 9–10). Plaintiff alleges that on August 27, 2014, Deputy Superintendent Mackey found him guilty on both misbehavior reports and sentenced him to three months in the special housing unit (“SHU”), with an additional three months suspended. (Id. at ¶ 14). According to Plaintiff, he appealed Deputy Superintendent Mackey's determination to Defendant Albert Prack, Director of the Special Housing Unit for DOCCS, who affirmed it. (Id. at ¶ 15).

Plaintiff filed his original Complaint on February 2, 2015, along with a motion for leave to proceed in forma pauperis. (Dkt.1, 2). By Decision and Order dated March 6, 2015, the Court granted Plaintiff leave to proceed in forma pauperis and ordered him to file an amended complaint no later than April 20, 2015. Plaintiff filed the Amended Complaint on April 15, 2015. (Dkt.5).

Defendants filed the instant motion on July 20, 2015. (Dkt.9). Plaintiff filed a response and a motion to appoint counsel on August 21, 2015. (Dkt.11, 12).

DISCUSSION

I. Legal Standard

Defendants have moved to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)

or for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt.9). In considering a motion to dismiss pursuant to Rule 12(b)(6), a court generally may only consider “facts stated in the complaint or documents attached to the complaint as exhibits or incorporated by reference.” Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005). A court should consider the motion “ ‘accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor.’ ” Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (quoting ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) ). To withstand dismissal, a plaintiff must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

“While a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotation marks and citations omitted). Thus, “at a bare minimum, the operative standard requires the plaintiff to provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.” Goldstein v. Pataki, 516 F.3d 50, 56–57 (2d Cir.2008) (internal quotation marks omitted).

In addition, “[i]t is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read to raise the strongest arguments that they suggest.” Green v. United States, 260 F.3d 78, 83 (2d Cir.2001)

(internal quotation marks omitted); see also Hemphill v. New York, 380 F.3d 680, 687 (2d Cir.2004)

(“It is well-established that ‘when [a] plaintiff proceeds pro se ... a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations.’ ”) (quoting McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004) ).

With respect to Defendants' request for summary judgment, Rule 56 of the Federal Rules of Civil Procedure

provides that summary judgment should be granted if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). Once the moving party has met its burden, the opposing party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. ’ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec., 475 U.S. at 586–87, 106 S.Ct. 1348 ) (emphasis in original). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).

II. Defendants' Motion is Procedurally Deficient

As a threshold matter, the Court addresses the procedural propriety of Defendants' combined motion to dismiss or for summary judgment, which was made in lieu of an answer and before any discovery has occurred in this case. The procedural difficulties associated with such motions, which are routinely made by Defendants' counsel, were recently addressed in Houston v. Sheahan, No. 13–CV–6594–FPG, 2016 WL 554849 (W.D.N.Y. Feb. 10, 2016)

:

Defendants' Motion was filed at the pleading stage, prior to any discovery.... The Memorandum supporting Defendants' Motion includes boilerplate language regarding the legal standard under both [Rule 12(b)(6)

and Rule 56 ], without specifying which arguments should be analyzed under Rule 56 and which should be analyzed under Rule 12(b)(6). The Motion was filed with certain hallmarks of a motion for summary judgment, such as a Rule 56 Statement of Undisputed Facts and the notice to pro se litigants required by Irby v. New York City Transit Auth., 262 F.3d 412, 413 (2d Cir.2001) and L.R. Civ. P. 56(b). Defendants also cite to material outside the pleadings in the facts section of their Memorandum and in making their arguments. But in the conclusion to the Memorandum, Defendants only request that the motion to dismiss be granted....

The jumbled nature of Defendants' Motion is problematic for several reasons. Other than the fact that they would like the Court to grant judgment in their favor, Defendants have provided little in the way of clarification as to what standards are applicable to Defendants' arguments. It is unclear whether the Defendants want this Court to analyze each of Defendants' arguments under both the Rule 56 and Rule 12 standards, analyze some arguments under the Rule 56 standard and others under the Rule 12 standard, or analyze all of Defendants' arguments under only one standard. The confusion caused by Defendants'

Motion is especially problematic in this case, where Plaintiff is proceeding pro se and is expected to respond to Defendants' arguments using the correct legal standard.

Id. at *2 (citations and quotations omitted). The Court went on to explain that such an application fails as a motion for summary judgment “because it fails to ‘identify[ ] each claim or defense—or the part of each claim or defense—on which summary judgment is sought’ ” and because...