Ortiz v. Russo
| Decision Date | 27 March 2015 |
| Docket Number | 13 CIV. 5317 (ER) |
| Parties | ENRIQUE ORTIZ, Plaintiff, v. ANTHONY RUSSO, C.O. GIBB, C.O. D. PARKHURST, CORRECTION OFFICER PRINDLE, DIR. D. VENETTOZZI, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Ramos, D.J.:
Pro se plaintiff Enrique Ortiz brings this suit pursuant to 42 U.S.C. § 1983 alleging that he was issued a misbehavior report ("Misbehavior Report") and held in the Segregated Housing Unit ("SHU") for ninety days while in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") in violation of his constitutional rights. Defendants Russo, Gibb, Parkhurst, Prindle, and Venettozzi (collectively, "Defendants") bring the instant motion to dismiss Plaintiff's Amended Complaint ("Am. Compl.") under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) on the ground that Plaintiff has failed to state any plausible claims of entitlement to relief. Def.'s Mem. L. Support. Mot. Dismiss, Doc. 33. For the reasons set forth below, Defendants' motion is GRANTED.
The Court accepts the following allegations as true for purposes of this motion.1
On May 21, 2010, Plaintiff was an inmate at the Eastern Correctional Facility when Corrections Officer ("C.O.") Prindle approached him in the prison yard and informed him that Sgt. Parkhurst wanted to see him in his office. Am. Compl., Doc. 28, ¶¶ 8-9. As C.O. Prindle escorted Plaintiff across the yard, he said to Plaintiff, "take a good look at this yard because it will be the last time you ever see it, or this facility, ever again . . . because we don't allow gang members in our facility." Id. at ¶¶ 11-12. Plaintiff was escorted into an office occupied by Sergeant ("Sgt.") Parkhurst and Lieutenant ("Lt.") John Doe, who questioned Plaintiff regarding a departmental disbursement form he had used to access his inmate account. Id. at ¶ 14. On the disbursement form at issue, Plaintiff had written "33%" beside his signature. Id. The officers told Plaintiff that that the 33% symbol is a known "marking" of the Trinitarios Gang. Id. at ¶ 19. Plaintiff explained that there had been a "rash of identity theft" from other inmates' institutional accounts, and the 33% symbol was simply his way of protecting his account from theft. Id. at ¶ 15.
While Plaintiff was being detained by Sgt. Parkhurst and Lt. John Doe, C.O.s Prindle and Gibb searched his cell. Id. at ¶ 24-25. The search resulted in the discovery of "months and years" worth of Plaintiff's old processed disbursement receipts, all of which included the same"33%" symbol next to his signature. Id. at ¶ 26. The officers also recovered a newspaper article about the Jheri Curl gang.2 Id. at ¶ 29.
Two days later, on May 23, 2010, Sgt. Parkhurst wrote and issued Plaintiff a Misbehavior Report for violating Rule 105.13 of the Standards of Inmate Behavior for New York. Id. at ¶¶ 33, 36. Rule 105.13 provides, "[a]n inmate shall not engage in or encourage others to engage in gang activities or meetings, or display, wear, possess, distribute or use gang insignia or materials including, but not limited to, printed or handwritten . . . gang related material." N.Y. Comp. Codes R. & Regs. Tit. 7, § 270.2(B)(6)(iv) (May 28, 2008). The Misbehavior Report found that Plaintiff (1) used the 33% symbol next to his signature to signify gang involvement, and (2) possessed a prohibited newspaper article. Am. Compl. ¶¶ 21, 38.
Plaintiff alleges that the Misbehavior Report was false and that Sgt. Parkhurst and Lt. John Doe issued it with the specific goal of harassing Plaintiff and depriving him of his liberty. Id. at ¶ 21. Specifically, Plaintiff alleges that all of the previous disbursement receipts had been approved, and no one had ever expressed to him the concern that the 33% symbol next to his signature was gang-related. Id. at ¶ 27. He also claims that he informed prison officials that a member of his family had sent him the article, which in turn was reviewed and provided to him by "the facility's Media Review." Compl., Doc. 2-1, at ¶ 9. Plaintiff claims Sgt. Parkhurst was retaliating against him for the dismissal of a prior misbehavior report issued to him three years earlier by Sgt. Parkhurst, on May 18, 2007. Am. Compl. ¶ 28. Immediately after the Misbehavior Report was served on Plaintiff, he was removed from the general population and placed in the Special Housing Unit ("SHU"). Id. at ¶ 37.
On May 28, 2010, Captain ("Cpt.") Russo conducted a Tier III hearing regarding the allegations in the Misbehavior Report and found Plaintiff guilty of both charges. Id. at ¶ 39. Cpt. Russo explained that Plaintiff provided no documentary evidence that Media Review had permitted him to possess the article at issue, Doc. 2-1 at 18,3 and that Plaintiff's explanation that he was using the 33% symbol to prevent forgery was "unreasonable." Id. Cpt. Russo imposed a penalty of ninety days in solitary confinement in the SHU and six months loss of good time. Am. Compl. ¶ 39. Plaintiff claims that Cpt. Russo prevented him from defending himself at the hearing by denying him a reasonable amount of time to review documents and preventing him from calling witnesses. Id. at ¶¶ 38, 47; Pl.'s Mem. L. Opp., Doc. 39 at 12-14.
Plaintiff's appeal of the Tier III hearing determination was affirmed by Director ("Dir.") Venettozzi on July 30, 2010. Id. at ¶ 40.
Plaintiff filed an Article 78 petition in state court on November 23, 2010, naming the five Defendants herein as respondents, to review the determination that he had violated Prison Rule 105.13.4 See Doc. 2-1 at 26. On January 5, 2012, the New York Supreme Court for Albany County confirmed the findings of the Tier III hearing. See Ortiz v. Fischer, 935 N.Y.S.2d 914 (2012). The court stated, "[t]he [M]isbehavior [R]eport, together with the documentary evidence and testimony adduced at the hearing, including petitioner's admission to possessing the items in question and the testimony of the correction officials trained in identifying gang-related material,provide substantial evidence supporting the determination of guilt." Id. The court also determined that Plaintiff's "claim that he was denied adequate employee assistance because he was not provided copies of the disbursement forms and article [was] unavailing given that he was provided an opportunity to review these documents at the hearing, which he declined, and he ha[d] not demonstrated any prejudice." Id. Moreover, Plaintiff's "assertion that the symbols on the disbursement forms were his personal mark and that the [M]isbehavior [R]eport was retaliatory in nature presented a credibility issue for the Hearing Officer to resolve." Id. The court concluded that the Misbehavior Report itself contained "enough detailed and specific information to allow petitioner to prepare an adequate defense." Id.
Plaintiff filed the instant action on July 30, 2013, followed by an Amended Complaint on February 7, 2014. Docs. 2, 28. Plaintiff alleges violations of his First Amendment rights against all Defendants under 42 U.S.C. § 1983. Am. Compl ¶¶ 43, 48, 54. Plaintiff also brings Fourteenth Amendment claims against Dir. Venettozzi and Cpt. Russo for violations of his due process rights.5 Id. at ¶¶ 43, 47. Lastly, he claims that Sgt. Parkhurst, along with C.O.s Prindle and Gibb, violated his constitutional rights by harassing him. Id. at ¶ 54. Plaintiff sues all Defendants in both their official and individual capacities. Id. at ¶¶ 4-5.
Defendants move to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction over Plaintiff's claims for monetary damages against Defendants in their official capacities, and pursuant to Rule 12(b)(6) for failure to state a claim.
Federal Rule of Civil Procedure 12(b)(1) requires that an action be dismissed for lack of subject matter jurisdiction when the district court lacks the statutory or constitutional power to adjudicate the case. Fed. R. Civ. P. 12(b)(1). The party asserting subject matter jurisdiction carries the burden of establishing, by a preponderance of the evidence, that jurisdiction exists. Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). On a Rule 12(b)(1) motion challenging the district court's subject matter jurisdiction, evidence outside of the pleadings, such as affidavits, may be considered by the court to resolve the disputed jurisdictional fact issues. Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); see also Morrison, 547 F.3d at 170 (citing Makarova, 201 F.3d at 113). When evaluating a motion to dismiss for lack of subject matter jurisdiction, the court accepts all material factual allegations in the complaint as true, but does not draw inferences from the complaint favorable to the plaintiff. J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) (citing Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)).
Where, as here, a party also seeks dismissal on Rule 12(b)(6) grounds, the court must consider the Rule 12(b)(1) motion first. Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 820 F. Supp. 2d 490, 499 (S.D.N.Y. 2011), aff'd sub nom. Baldessarre ex rel. Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 496 F. App'x 131 (2d Cir. 2012).
When ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonableinferences in the plaintiff's favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The court is not required to credit "mere conclusory statements" or "threadbare recitals of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550...
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