Hendricks v. Mallozzi

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

ANDREW HENDRICKS,

Plaintiff,

vs. 9:20-CV-1035

(MAD/ML)

SHELLEY M. MALLOZZI, Director of the Inmate

Grievance Program for DOCCS; EARL BELL,

Superintendent, Clinton Correctional Facility;

D. HOLDRIDGE, Deputy Superintendent for

Security, Clinton Correctional Facility; and

C. DELUTIS, Captain of Security, Clinton

Correctional Facility,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

ANDREW HENDRICKS

07-B-0269

Eastern New York Correctional Facility

Box 338

Napanoch, New York 12458

Plaintiff, Pro Se

NEW YORK STATE ATTORNEY BRENDA BADDAM, AAG

GENERAL

The Capitol

Albany, New York 12224

Attorneys for Defendants

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff commenced this civil rights action on September 3, 2020, alleging violations of

his constitutional rights while he was incarcerated at Clinton Correctional Facility. See Dkt. No.

1. On October 29, 2020, this Court dismissed the complaint without prejudice pursuant to 28

U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). See Dkt. No. 5. Plaintiff filed a proposed amended

complaint on November 18, 2020. See Dkt. No. 8. In his amended complaint, Plaintiff asserted

that Defendants C. DeLutis, K. Hicks, D. Holdridge, Earl Bell, and Shelley M. Mallozzi violated

his First and Fourteenth Amendment rights when they removed him from his prison job in

retaliation for filing a grievance against a correctional officer. See id. at ¶¶ 24-57. On December

23, 2020, this Court accepted the amended complaint for filing only to the extent that it asserted

First Amendment retaliation claims against Defendants DeLutis, Holdridge, Bell, and Mallozzi,

and dismissed the remaining claims without prejudice. See Dkt. No. 9.

On March 1, 2021, in lieu of an answer, Defendants filed a motion to dismiss the amended

complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 17.

On January 14, 2022, Magistrate Judge Lovric issued a Report and Recommendation

recommending that Defendants' motion to dismiss be granted with respect to Defendants

Holdridge, Bell, and Mallozzi, and denied with respect to Defendant DeLutis. See Dkt. No. 28.

On January 31, 2021, Plaintiff objected to the Report and Recommendation to the extent it

recommended granting Defendants' motion to dismiss with respect to Defendants Holdridge, Bell,

and Mallozzi. See Dkt. No. 29. Currently before the Court is Magistrate Judge Lovric's Report

and Recommendation and Plaintiff's objection thereto.

II. BACKGROUND

The amended complaint alleges that, on October 11, 2017, Plaintiff was given an "Inmate

Counseling Notification" by a nonparty civilian employee of the tailor shop where Plaintiff

worked. See Dkt. No. 8 at ¶ 10. Two days later, Plaintiff submitted a grievance to the Inmate

Grievance Resolution Committee ("IGRC") alleging that nonparty Corrections Officer ("C.O.")

Ayotte was harassing him in connection with the Inmate Counseling Notification. See id. at ¶ 11.

Defendant DeLutis "was in charge of the investigation[ and] directed [a nonparty C.O.] to

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interview [Plaintiff] and C.O. Ayotte about the incident, which he did, separately, on 10/27/17."

Id. at ¶ 26. On November 1, 2017, at the request of Defendant DeLutis, Plaintiff was removed

from his position at the tailor shop for confidential "security reasons." Id. at ¶ 29.

On December 11, 2017, Plaintiff filed a second grievance complaining that his removal

from his tailor shop job was done in retaliation for the prior grievance he had filed against C.O.

Ayotte. See id. at ¶ 30. The IGRC denied the second grievance, stating that Plaintiff was

removed from the tailor shop for legitimate security concerns. See id. at ¶ 47. The IGRC told

Plaintiff he was not allowed to know what those security reasons were because "it might

jeopardize the safety and security of the facility." Id.

Plaintiff appealed the IGRC's decision to the Superintendent, Defendant Bell, on

December 27, 2017. Id. Defendant Bell ultimately denied the appeal and found Plaintiff's

retaliation claim to be "unsubstantiated" because Plaintiff was removed from the tailor shop for

legitimate security concerns. Id. at ¶ 48. In rendering this decision, Defendant Bell allegedly

quoted the "Policy, Procedures and Standards for Programing Inmates manual" and stated that

"[a] change in program can be made at anytime, 'in person or in writing ... .'" Id. at ¶ 49. The

amended complaint claims that this quote was "nothing less than a shameless and unattractive

attempt to be deceptive and misleading" because the manual "clearly does not say 'in person or in

writing' in that particular section." Id.

Plaintiff appealed Defendant Bell's determination to the DOCCS Central Office Review

Committee ("CORC"), where Defendant Mallozzi was serving as Director. Id. CORC upheld

Defendant Bell's determination, finding that Plaintiff was removed from his position at the tailor

shop for security reasons. See id. at ¶ 53.

Meanwhile, on November 27, 2017, Plaintiff sent a letter to Defendant Holdridge

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requesting information about his removal from the tailor shop. See id. at ¶ 43. Defendant

Holdridge replied the same day, "stating that he had reviewed the 'confidential documentation

supporting [Plaintiff's] removal' and that he ... also support[ed] the removal" because it was "in

the best interest of the facility." Id. The complaint asserts that Defendant Holdridge's statement

that he reviewed confidential documentation is a "deliberate and deceptive untruth" because

Plaintiff "F.O.I.L. requested any and all documents" related to his removal and the only thing he

received was a copy of an email from Defendant DeLutis requesting the removal. Id. at ¶¶ 44-45.

On March 1, 2021, Defendants DeLutis, Holdridge, Bell, and Mallozzi filed a motion to

dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6). See Dkt. No. 17. On

January 14, 2022, Magistrate Judge Lovric issued a Report and Recommendation recommending,

as relevant here, that the motion to dismiss be granted as to Defendants Holdridge, Bell, and

Mallozzi. See Dkt. No. 28. Magistrate Judge Lovric found that—after the Second Circuit's recent

ruling in Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020)—a "'plaintiff cannot establish [a

supervisor's] personal involvement based upon the denial of grievance and/or appeals because it

does not plausibly suggest "[t]he factors necessary to establish" a First Amendment ... claim.'"

Dkt. No. 28 at 17 (quotation omitted). Noting that "Plaintiff's allegations against Defendants

Holdridge, Bell, and Mallozzi, relate[d] solely to their (a) denial of Plaintiff's grievance, (b)

affirmation of Plaintiff's grievance denial, and/or (c) affirmation of Defendant DeLutis's removal

of Plaintiff from the tailor shop," Magistrate Judge Lovric concluded that Plaintiff's "allegations

are insufficient to plausibly suggest the personal involvement of Defendants Holdridge, Bell, and

Mallozi." Id.

Plaintiff's raises two objections to Magistrate Judge Lovric's Report and Recommendation.

First, Plaintiff argues that the amended complaint alleged facts beyond the denial or affirmation

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of the denial of a grievance that plausibly support the personal involvement of Defendants

Holdridge, Bell, and Mallozzi in Plaintiff's retaliation claim. See Dkt. No. 29 at ¶¶ 1-4. Second,

Plaintiff argues that it was unfair for Magistrate Judge Lovric to rely on Tangreti in rejecting his

retaliation claims because Tangreti was decided after Plaintiff filed his amended complaint. See

id. at ¶¶ 5-7. Plaintiff also asks for permission to file a second amended complaint should the

Court choose to adopt the Report and Recommendation. See id. at ¶ 7.

III. DISCUSSION

A. Standard of Review

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.

Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal

sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all

reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493

F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not

extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

Although a court's review of a motion to dismiss is generally limited to the facts presented in the

pleading, the court may consider documents that are "integral" to that pleading, even if they are

neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v.

Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d

147, 152-53 (2d Cir. 2002)).

To survive a motion to dismiss, a party need only plead "a short and plain statement of the

claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is

entitled to relief.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).

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Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief

above the speculative level," id. at 555 (citation omitted), and present claims that are "plausible

on [their] face." Id. at 570. "The plausibility standard is not akin to a 'probability requirement,'

but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556

U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a

defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement

to relief."'" Id. (quoting [Twombly, 550 U.S.] at 557). Ultimately, "when the allegations in a

complaint, however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S. at

558, or where a plaintiff has "not nudged [his] claims across the line from conceivable to

plausible, the[ ] complaint must be dismissed." Id. at 570.

"[I]n a pro se case, the court must view the submissions by a more lenient standard than

that accorded to ‘formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d

289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations

omitted). The Second Circuit has opined that the court is obligated to "make reasonable

allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because

they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

When a party files specific objections to a magistrate judge's report-recommendation, the

district court makes a "de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,

when a party files "[g]eneral or conclusory objections or objections which merely recite the same

arguments [that he presented] to the magistrate judge," the court reviews those recommendations

for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,

2011) (citations and footnote omitted). After the appropriate review, "the court may accept,

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reject, or modify, in whole or in part, the findings or recommendations made by the magistrate

judge." 28 U.S.C. § 636(b)(1).

B. Plaintiff's Objections

Plaintiff's first objection is that his amended complaint has alleged facts that plausibly

suggest the personal involvement of Defendants Holdridge, Bell, and Mallozzi in the events that

form the basis of his retaliation claim. See Dkt. No. 29 at ¶ 1. Specifically, Plaintiff asserts that

the amended complaint states that Defendant Holdridge "took it upon himself to get personally

involved" by responding to a letter written by Plaintiff and "stating that he [had] reviewed the

confidential documentation supporting [Plaintiff's] removal from the Tailor Shop ... knowing full

well that no such documentation even existed." Id. at ¶ 2 (citing Dkt. No. 8 at ¶¶ 42-45). Plaintiff

also asserts that Defendant Bell did more than "merely deny [his] grievance on appeal"; claiming

that he "reconfigur[ed] and manipulat[ed] the wording of DOCCS policy," showing "blatant

disregard for and deliberate indifference to [Plaintiff's] First Amendment rights." Id. at ¶ 4 (citing

Dkt. No. 8 at ¶¶ 46-51). Finally, Plaintiff argues that the amended complaint states that

Defendant Mallozzi "just rubber stamped [D]efendant Bell's decision," making him "just as liable

as [D]efendant Bell." Id.

The Court finds that Defendants' motion to dismiss should be granted with respect to

Defendants Holdridge, Bell, and Mallozzi. As Magistrate Judge Lovric found, "[i]t is well settled

that affirming the outcome of a disciplinary hearing does not in itself constitute personal

involvement in any potential due process violation," or other alleged underlying unconstitutional

conduct. Abdul-Halim v. Bruyere, No. 9:19-CV-740, 2021 WL 3783087, *3 (N.D.N.Y. Aug. 26,

2021); see also Smart v. Annucci, No. 19-CV-7908, 2021 WL 260105, *5 (S.D.N.Y. Jan. 26,

2021) ("Failing to correct another officer's violation does not suffice"); Gomez v. Sepiol, No.

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11-CV-1017, 2014 WL 1575872, *10 (W.D.N.Y. Apr. 11, 2014) ("[T]he investigation of a

grievance alone, is not sufficient to allege personal involvement in the underlying constitutional

violation"); Rosales v. Kikendall, 677 F. Supp. 2d 643, 649 (W.D.N.Y. 2010) (holding that the

plaintiff failed to establish the defendant's personal involvement based on allegations that the

defendant investigated the plaintiff's grievance and concluded that there was no evidence that the

other defendants had retaliated against the plaintiff). Contrary to Plaintiff's argument, Defendant

Holdridge's reliance on confidential documentation and Defendant Bell's alleged error when

quoting DOCCS policy do not transform their review of his second grievance into personal

involvement in the underlying constitutional violation (the allegedly retaliatory removal of

Plaintiff from his job); nor do these alleged actions amount to separate constitutional violations.

Plaintiff next objects to the application of the Second Circuit's holding in Tangreti v.

Bachmann, 983 F.3d 609 (2d Cir. 2020),1 to this case. See Dkt. No. 29 at ¶¶ 5-7. Specifically,

Plaintiff notes that the amended complaint was filed before the decision in Tangreti was issued,

and argues that it would be "unfair" for the Court to apply Tangreti where he "obviously had no

knowledge that the [prior] test would soon be invalidated" at the time he wrote the amended

complaint. Id. at ¶ 7. The Court finds that Tangreti is properly applied to this case. "[T]he

general rule [is] that a court must apply the law as it exists at the time it renders its decision."

Walsche v. First Inv'rs Corp., 981 F.2d 649, 653 (2d Cir. 1992) (citations omitted); see also

Kremer v. Chem. Const. Corp., 623 F.2d 786, 788-89 (2d Cir. 1980), aff'd, 456 U.S. 461 (1982)

("The general rule of long standing is that judicial precedents normally have retroactive as well as

1 In Tangreti, the Second Circuit addressed how the Supreme Court's decision in Iqbal

affected the standards for establishing supervisory liability. Ultimately, the Second Circuit held

that, to establish a constitutional violation against a supervisor, a plaintiff "must plead and prove

that [the supervisor-]defendant, through [his or her] own individual actions, has violated the

constitution." Tangreti, 983 F.3d at 618 (internal quotation marks omitted).

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prospective effect"). The narrow exception to this general principle identified in Chevron Oil Co.

v. Huson, 404 U.S. 97 (1971), does not apply here.2

Accordingly, the Court adopts Magistrate Judge Lovric's Report and Recommendation in

its entirety.

C. Leave to Amend

Finally, Plaintiff requests leave to file a second amended complaint should the Court

choose to adopt Magistrate Judge Lovric's Report and Recommendation. See Dkt. No. 29 at ¶ 7.

In general, a court should not dismiss a pro se litigant's complaint without granting leave to

amend at least once "'when a liberal reading of the complaint gives any indication that a valid

claim might be stated.'" Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (quoting

Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). However, an opportunity to

amend is not required where the plaintiff has previously been afforded such an opportunity. See

Coleman v. brokersXpress, LLC, 375 Fed. Appx. 136, 137 (2d Cir. 2010); see also Bivona v.

McLean, No. 9:19-CV-0303, 2019 WL 2250553, *5 (N.D.N.Y. May 24, 2019); Abascal v. Hilton,

No. 04-CV-1401, 2008 WL 268366, *8 (N.D.N.Y. Jan. 13, 2008), aff'd, 357 Fed. Appx. 388 (2d

Cir. 2009).

Here, Plaintiff has already been afforded one opportunity to amend the complaint and has

not made any specific showing as to how he would cure the defects that have persisted if given a

second opportunity to amend. Accordingly, Plaintiff's request for leave to file a second amended

2 "To qualify for purely prospective application, a decision 'must establish a new principle

of law, either by overruling clear past precedent on which litigants may have relied ... or by

deciding an issue of first impression whose resolution was not clearly foreshadowed'" and "the

court must then 'weigh' the issue of whether retroactive application would conflict with or further

the purposes of the new rule and whether it would produce inequitable results." Walsche, 981

F.2d at 653 (quoting Chevron Oil Co., 404 U.S. at 106-07).

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complaint is denied.

IV. CONCLUSION

After carefully reviewing the Report and Recommendation, the entire record in this

matter, and the applicable law, the Court hereby

ORDERS that Magistrate Judge Lovric's Report and Recommendation (Dkt. No. 28) is

ADOPTED in its entirety for the reasons set forth herein; and the Court further

ORDERS that Defendants’ motion to dismiss (Dkt. No. 17) is GRANTED in part and

DENIED in part; and the Court further

ORDERS that Defendants Holdridge, Bell, and Mallozzi are terminated as Defendants in

this action; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT ISSO ORDERED.

Dated: March 23, 2022 Ja ie lg te

Albany, New York f a 7 Gey ty

Mae A. D' Agosting~”

U.S. District Judge

> Plaintiff's First Amendment retaliation claim remains against Defendant DeLutis.

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