Perez v. Ponte, CV 16–645 (JFB) (AKT)

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Writing for the Court: A. KATHLEEN TOMLINSON, U.S. Magistrate Judge
• Citation: 236 F.Supp.3d 590
• Docket Number: CV 16–645 (JFB) (AKT)
• Decision Date: 14 February 2017
• Parties: Jesswill PEREZ, Pro Se Plaintiff, v. Joseph PONTE, New York City Correction Department Commissioner and Michael Sposato, Sheriff of the Nassau County Jail, Defendants.

236 F.Supp.3d 590

Jesswill PEREZ, Pro Se Plaintiff,
v.
Joseph PONTE, New York City Correction Department Commissioner and Michael Sposato, Sheriff of the Nassau County Jail, Defendants.

CV 16–645 (JFB) (AKT)

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

Signed February 14, 2017

236 F.Supp.3d 598

Jesswill Perez, Fishkill, NY, pro se.

Colin M. Ceriello, Office of the Corporation Counsel New York City Law Department, New York, NY, Pablo A. Fernandez, Nassau County Attorney's Office, Mineola, NY, for Defendants.

REPORT AND RECOMMENDATION

A. KATHLEEN TOMLINSON, U.S. Magistrate Judge

I. PRELIMINARY STATEMENT

Pro se Plaintiff Jesswill Perez ("Plaintiff") brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of the Fourth, Sixth and Fourteenth Amendments of the United States Constitution arising from incidents which occurred while he was a pre-trial detainee. See generally Complaint ("Compl.") [DE 1]. Defendants Joseph Ponte and Michael Sposato (collectively, "Defendants") have moved to dismiss the Complaint, with prejudice, pursuant to Federal Rule Civil Procedure 12(b)(6). See Notice of Motion [DE 16, 20]. Plaintiff opposes Defendants' respective Motions to Dismiss and, in addition, has filed a Motion to Amend his pleading to assert additional facts and to name additional parties to support his claims. See generally Plaintiff's Motion to Amend [DE 33].¹ Judge Bianco referred Defendants' Motions to Dismiss as well as Plaintiff's Motion to Amend to this Court for a Report and Recommendation as to whether any of the motions should be granted. See DE 37.

II. BACKGROUND

A. The Complaint

The following factual allegations have been taken from Plaintiff's Complaint as well as the amplified statement of facts raised in Plaintiff's memorandum of law in opposition to the respective motions to dismiss. Because Plaintiff is proceeding pro se , the Court is obligated to construe his pleadings liberally to raise the strongest arguments that they suggest. See Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 474–75 (2d Cir. 2006) (per curiam) All facts alleged by the Plaintiff are assumed to be true for purposes of deciding the motions to dismiss and are construed in a light most favorable to the Plaintiff as the non-moving party. See, e.g. , LaFaro v. N.Y. Cardiothoracic Grp. , 570 F.3d 471, 475 (2d Cir. 2009) ; Matthews v. City of N.Y. , 889 F.Supp.2d 418, 425 (E.D.N.Y. 2012).

1. The July 16, 2015 Transfer to Nassau County Correction Center

On July 16, 2015, Plaintiff, a pre-trial detainee initially housed at Riker's Island Prison ("Riker's"), was transferred to Nassau County Correctional Center

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("NCCC"). Compl. Section IV ¶ 1. The Court points out that Plaintiff does not specifically characterize himself as a pre-trial detainee. However, in his Complaint, he states that he was awaiting trial with respect to his pending criminal case, which was scheduled to begin on January 25, 2016. Id.

Although Plaintiff asserts that the transfer to NCCC took place so that he could be alternatively housed, he alleges that the underlying reason for the transfer was never conveyed to him by officials from either facility. Id. In addition, he claims that (1) he was not provided with any documentation or a hearing in conjunction with or subsequent to the transfer, and (2) the transfer violated his due process rights. Pl.'s Opp'n at 2. Further, Plaintiff claims that while housed at NCCC, he was afforded access to the law library for only one hour per week (in contrast to two hours per day of access while at Rikers) and had no ability to telephone his attorney free of charge. Id. The transfer has resulted in geographical difficulties in gaining access to his attorney since he is unable to be transported to court to meet with his attorney. Likewise, Plaintiff maintains that it is "difficult for [his] attorney to travel to Nassau County." Id.

2. The September 15, 2015 "Pat Frisk" Incident

On September 15, 2015, NCCC corrections officers conducted a random search of Plaintiff's cell. Compl. Section IV ¶ 2. In preparation for the search, officers restrained Plaintiff using handcuffs and leg shackles, after which Plaintiff was removed from his cell. Id. Once Plaintiff was sufficiently restrained, Officer Foley² conducted

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a "pat frisk" of Plaintiff's person. Id. Plaintiff asserts that while conducting the "pat frisk," Officer Foley shook the waistband of his pants, touched him between his buttocks and then removed his fingers, smelled them and told Plaintiff that he "smell[ed] sweet." Id. ; see Pl.'s Opp'n at 3. Plaintiff characterizes Officer Foley's behavior as a "sexual assault" and states that although he complained to Internal Affairs, they never pursued the incident. Id.

3. The September 29, 2015 Physical Assault by Corrections Officers

On September 29, 2015, Plaintiff was directed to submit to a strip search and refused to do so—ostensibly because he would have had to remove his clothing in front the same officer whom he alleges sexually assaulted him during a prior incident. Compl. Section IV ¶ 3. Although Plaintiff claims that he asked officials whether a different officer could oversee the search, his request was refused and he then "refused to strip." Id. According to Plaintiff, when he refused to take off his clothing, he was "sprayed with chemicals," "thrown on the floor," "punched," and then transported to the medical facility. Id. Upon his arrival at the medical facility, his clothes were removed, after which he was transported back to the behavior management unit. Id. Plaintiff states that while at the medical facility, he was "naked in front of a lot of people" and was transported in the nude to the behavioral unit where he was directed to "squat in front of over 20 inmates" before he was directed to shower. Id.

4. The December 26, 2015³ and January 6, 2016 Attacks by Fellow Inmates

Plaintiff states that he "was slashed and assaulted by an unknown inmate" on December 26, 2015 and that he reported the incident to Officer Trada. Compl. Section IV ¶ 4. Following Plaintiff's report of the assault, he was transported to the medical facility and then taken to a different housing area within NCCC.

On January 6, 2016, Plaintiff suffered another violent altercation while speaking with an officer in the recreation yard. Id. According to Plaintiff, an unidentified inmate approached him from behind and slashed him from his ear down to his chin. Id. At the time, Plaintiff was assaulted, another inmate was also under attack at the opposite side of the recreation yard. Id. Plaintiff maintains that the officer he was speaking with told him to "stand still," but when other inmates approached Plaintiff, the officer ran back to his office. Id.

5. The April 7, 2016 Transfer Back to Riker's Island and Subsequent Segregation

Plaintiff was transferred back to Riker's on April 7, 2016, and was immediately placed in isolation "from everyone in the housing area." Pl.'s Opp'n at 8. While in isolation, Plaintiff was visited by Ms. King, Executive Director of the Board of Corrections,

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who inquired if Plaintiff was receiving all his entitlements and asked whether he consented to remaining in isolation. Id. Plaintiff says he expressed to Ms. King that he "wanted to go back to general population to associate with people instead of being isolated all day." Id. Several days later, Plaintiff claims that Chief Turhan Gumusdere and Ms. King spoke with him about remaining in isolation. Plaintiff asserts that he told Chief Gumusdere that he did not "want to be in protective custody." Id. According to Plaintiff, Chief Gumusdere stated that "[I] heard you [were] giving my budd[ies] in [N]assau a hard time[.] [Y]ou act like an asshole you [are going to] get treated like one." Id. Following this conversation, Plaintiff states that he was left in isolation until he was subsequently transferred to another facility. Id.

6. The April 14, 2016 Transfer to Rockland County Jail

At some point following Plaintiff's conversation with Ms. King and Chief Gumusdere regarding his isolation, the Assistant Chief (Plaintiff does not identify this individual by name) visited with him and purportedly stated that prison officials would be "sending [Plaintiff] far away w[h]ere you [will not] be able to complain."Id. Thereafter, on April 14, 2016, Plaintiff asserts that he was transferred to Rockland County Correctional Center ("Rockland") without being given a reason for the transfer or any information concerning his right to appeal the decision. Id. Plaintiff claims that similar to his earlier transfer to NCCC, his subsequent transfer to Rockland prevented him from contacting his attorney. Id. Specifically, Plaintiff states that from May...