Vogelfang v. Capra

Citation889 F.Supp.2d 489
Decision Date13 March 2012
Docket NumberNo. 10 Civ. 3827(PAE).,10 Civ. 3827(PAE).
PartiesAnnette VOGELFANG, Plaintiff, v. Deputy Superintendent CAPRA, et al., Defendants.
CourtU.S. District Court — Southern District of New York

OPINION TEXT STARTS HERE

Annette Vogelfang, Central Islip, NY, pro se.

Kevin Ryan Harkins, Assistant Attorney General, New York, NY, for Defendants.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Defendants Ernest Maddox, Donald Selsky, Norman Bezio, Nurse Tracy Jewell, C.O. Shavo, C.O. Nunez, C.O. Butler, C.O. Simmons, C.O. Bottone, C.O. Derry, C.O. McCants, Mary Hayo, Brian Fischer, Captain Fitzgerald, Superintendent Perez, Thomas Eagan, Karen Bellamy, Deputy Superintendent for Security Capra, C.O. Tardibono and C.O. Holmes (collectively, defendants) move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint of pro se plaintiff Annette Vogelfang (Vogelfang), who asserts 25 claims under 42 U.S.C. § 1983 contesting the conditions of her confinement and challenging the conduct of numerous correction officers at Bedford Hills Correctional Facility. For the following reasons, defendants' motion is granted as to all but three of Vogelfang's claims.

I. Background1

On May 10, 2010, Vogelfang, proceeding pro se and presently incarcerated at BedfordHills Correctional Facility under the supervision of the New York State Department of Corrections, filed a Complaint in this Court. That Complaint consists of 10 documents, all written or sworn to in or about March 2010. Because those documents make disparate allegations and are not readily synthesized into a single narrative, the Court summarizes Vogelfang's allegations by the document they are contained in.

In the first two documents, a form complaint and accompanying affidavit dated March 16, 2010, Vogelfang alleges that while imprisoned at Bedford Hills, she has been subjected to cruel and inhumane punishment, in part by being placed in the Special Housing Unit (“SHU”) for round-the-clock confinement. Vogelfang asserts that she was placed in the SHU as a result of false and malicious misbehavior reports that defendants filed against her. Vogelfang also claims that “all staff” at Bedford Hills have used force against her in retaliation for her complaint that she was sexually assaulted by an unnamed correction officer.

In the third document, Vogelfang alleges that her due process rights, and internal Department of Corrections protocols, have been violated because Bedford Hills does not provide electronic recordings of disciplinary proceedings to inmates until after the time to appeal a disciplinary determination has elapsed. Vogelfang alleges that defendants McCants and Capra are responsible for overseeing this program.

In the fourth document, Vogelfang claims that her due process rights were violated when a disciplinary proceeding was not electronically recorded, and when a disciplinary proceeding was not commenced within seven days of her release from the Mental Health Unit. Vogelfang alleges that the proceeding did not occur until 25 days after the incident. She asserts that an extension of time, granted to prison officials, to serve a disciplinary ticket on her violated her constitutional rights.

In the fifth document, Vogelfang makes an array of complaints about the conditions of her confinement. These include that: (1) she has been denied heat and food on some occasions; (2) she has been found guilty at disciplinary hearings initiated by unsubstantiated and false misbehavior reports; (3) she has been denied the right to practice her religion, in violation of the First Amendment; (4) she has been denied court-ordered visits with her son; (5) that she has been denied telephone privileges; (6) she has been denied the right to petition the government for redress of grievances, in violation of the First Amendment; (7) defendants Bellamy and Eagan routinely deny grievance appeals and uphold determinations by the prison superintendent; (8) defendants Selsky and Bezio routinely affirm unjust and improper disciplinary hearings despite the lack of evidence of wrongdoing; (9) defendant Fitzgerald routinely classifies all of Vogelfang's misbehavior reports as Tier III infractions; (10) she has been denied the use of a computer; (11) her legal documents have been improperly downloaded by prison personnel outside of her presence; (12) defendant Fischer has been put on notice of these alleged deprivations yet has done nothing; (13) she has been denied her hour of exercise in the yard; (14) defendant Jewell, a nurse, has been deliberately indifferent to Vogelfang's serious medical needs; and (15) defendant Superintendent Williams has ignored Vogelfang's letters airing these grievances.

In the sixth document, Vogelfang makes several complaints about two Inmate Misbehavior Reports (“IMRs”) filed against her, the process arising out of those IMRs, and other unrelated interactions with correction officers. First, she claims that defendant Derry denied her an hour of exercise and “performed a degrading sexual act” in front of her. Vogelfang alleges that she filed a grievance against Derry for these transgressions and that, in retaliation, Derry filed a false IMR against her, which resulted in her spending three months in the SHU. Second, Vogelfang claims that defendant Butler denied her recreation time and filed a false IMR against her. In connection with these two false IMRs, Vogelfang contends that her due process rights were violated because the outcomes of the disciplinary hearings were pre-determined and defendant Hayo did not allow her to call witnesses in her defense and conducted a “cruel and ridiculous” hearing on the IMRs. Third, Vogelfang alleges that defendant Holmes harassed her by pat-frisking her when only female correction officers are permitted to do so. Additionally, Vogelfang contends that, on March 2, 2010, defendant Tardi bono pushed her into concrete when attempting to intervene in an episode of prisoner non-compliance. Vogelfang also claims that Tardi bono dragged her by the handcuffs into a corner, where Tardi bono and defendant Shavo slammed her into a metal chair and pulled painfully on her shackles. Finally, Vogelfang claims that non-defendant C.O. Reese tightened her handcuffs unnecessarily on a trip out of the prison for medical treatment.

The seventh document, functionally an extension of the sixth, elaborates on the March 2, 2010 incident involving defendants Tardibono and Shavo. On that date, Vogelfang appeared before defendant Hayo for the disciplinary proceeding described in document six. Plaintiff asserts that, because the outcome of the proceeding was pre-determined, she got up to leave the hearing before it concluded but was grabbed and detained by defendant Velez. Vogelfang further alleges that Velez called to Tardibono and Shavo for assistance, whereupon they dragged her into a corner and slammed her into a chair as described above.

The eighth document was construed by the Honorable John G. Koeltl, United States District Judge, to whom this case was previously assigned, as a motion for a preliminary injunction. That motion was denied on October 4, 2010, 2010 WL 3895493.See Dkt. 28.

The ninth document complains generally of Bedford Hills' treatment of Vogelfang, specifically the allegedly-excessive time she has been placed in the SHU. Vogelfang asserts that she made an idle threat against another inmate, and that this transgression caused her to be put in the SHU for approximately six months, although previous similar behavior had not produced such a response.

The tenth and final document is in narrative form and contains a large number of allegations. First, Vogelfang alleges that at a January 8, 2008 disciplinary hearing initiated by defendant Bottone, she was deprived of due process by, inter alia, not being served with the IMR until under 24 hours before the hearing, not being allowed to ask all questions she wanted of a witness, and being removed from the hearing. Vogelfang further complains that defendant Maddox, the hearing officer at the proceeding, questioned witnessesoutside of her presence. As a result of these deficiencies, Vogelfang claims, she was assigned to the SHU for approximately six months and lost approximately three months of good-time credit. Second, Vogelfang further asserts that this course of events was a form of retaliation for her claim of sexual assault against a correction officer. Third, Vogelfang contends that defendant Nunez has harassed her for years by, inter alia, destroying her legal documents, hitting, pushing, pulling, and kicking her. She further claims that defendants Nunez and Bottone have conspired to deny her breakfast in the morning—which, she claims, is a necessary accompaniment to her prescription medication—and have written false IMRs and denied her recreation time. Fourth, Vogelfang asserts that she was denied access to the law library by a non-defendant correction officer, who also wrote false IMRs against her. 2 Fifth, Vogelfang claims that at a March 14, 2008 disciplinary hearing conducted by defendant Maddox, she requested the ability to use an assistant but that request was denied; that Maddox ordered Vogelfang removed for non-compliance; and that a non-defendant officer then dragged Vogelfang 300 feet in handcuffs, after which she requested, but was refused, medical treatment. While Vogelfang was not present, the hearing allegedly went on without her, and she was given 60 days “keeplock” confinement as a result. Fifth, Vogelfang alleges that, on or about March 21, 2008, defendant Nunez hit her in her back and shoulders, and that she was again denied medical treatment. Sixth, Vogelfang claims that defendant Bottone harassed her, causing her to be given another 60–day term in the SHU. Seventh, Vogelfang asserts that defendant Bottone came to her cell with another officer and wrote another false IMR resulting in another 60–day period in the SHU. Eighth, she reiterates her argument that the...

To continue reading

Request your trial
111 cases
  • Samuels v. Fischer
    • United States
    • U.S. District Court — Southern District of New York
    • March 1, 2016
    ...2014 WL 5757448 (S.D.N.Y. Nov. 5, 2014), reconsideration denied , 2015 WL 1501625 (S.D.N.Y. Apr. 1, 2015) ; Vogelfang v. Capra , 889 F.Supp.2d 489, 502 (S.D.N.Y.2012) (“To the extent [the plaintiff] may argue that [two of the defendants] failed to properly supervise subordinates who were vi......
  • Holland v. City of N.Y.
    • United States
    • U.S. District Court — Southern District of New York
    • June 24, 2016
    ...actionable claim of sexual harassment under Boddie without having physical contact with the alleged perpetrator," Vogelfang v. Capra, 889 F.Supp.2d 489, 508 (S.D.N.Y.2012), or without, at the very least, alleging egregious sexual conduct, see Smith v. Roberson , No. 15 Civ. 930, 2016 WL 105......
  • K.D. v. White Plains Sch. Dist.
    • United States
    • U.S. District Court — Southern District of New York
    • February 5, 2013
    ...561 (1976) (explainingthat supervisory officials do not have a general duty to prevent future misconduct); see also Vogelfang v. Capra, 889 F.Supp.2d 489, 502 (S.D.N.Y.2012) (“[T]he mere fact that a defendant possesses supervisory authority is insufficient to demonstrate liability for failu......
  • Corley v. Vance
    • United States
    • U.S. District Court — Southern District of New York
    • March 27, 2019
    ...City of New York , No. 14 Civ. 1046 (NRB), 2014 WL 6433313, at *4 n.1 (S.D.N.Y. Nov. 7, 2014) (collecting cases); Vogelfang v. Capra , 889 F.Supp.2d 489, 502 (S.D.N.Y. 2012) (same); see also Raspardo v. Carlone , 770 F.3d 97, 116-17 (2d Cir. 2014) (declining to decide the degree to which Co......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT