Brown v. Markham

! USDC SDNY □

CT COURT | CEMENT

SOUTHERN DISTRICT OF NEW YORK ! Does RONICALLY FILED

TYREEN BROWN, | DATE ried: 87 <p 77g,

Plaintiff,

No. 16-CV-0710 (NSR)

-against- OPINION & ORDER

LT. MURPHY,

Defendant.

NELSON S. ROMAN, United States District Judge

Plaintiff Tyreen Brown commenced this pro se action pursuant 42 U.S.C. § 1983, |

alleging violations of his Fourteenth Amendment due process rights in connection with a

disciplinary hearing resulting in thirty-day keeplock confinement at Green Haven Correctional

Facility. (See Second Am. Compl. (“SAC”), ECF No. 57.)

Presently before the Court is Defendant’s motion dismiss the SAC pursuant to Federal

Rules of Civil Procedure Rule 12(b)(6) for failure to state a claim. (ECF No. 64.)

For the reasons that follow, Defendant’s motion to dismiss is GRANTED.

BACKGROUND

I. Factual Background

The following facts are drawn from the SAC and are accepted as true for the purposes of

this motion. The Court also considered documents incorporated into the SAC by reference. See

Kleinman y, Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013).

Plaintiff Tyreen Brown, an inmate formerly incarcerated at Green Haven Correctional

Facility, was issued a misbehavior report after he was involved in an altercation in the Green

Haven showers on January 21, 2015. (SAC pp. 2 — 3); (Stabile Decl. § 2, Ex. A, ECF No. 65.)

As a result of the report, a disciplinary hearing was held from January 28, 2015 to March 13,

2015 before Defendant Murphy. (SAC p. 2); (Stabile Decl. ¶ 4, Ex. C.) For thirty days, while

his hearing was pending, Plaintiff was confined to keeplock. (SAC p. 2 & 4); (Stabile Decl. ¶ 5,

Ex. D.)1

Plaintiff alleges that Defendant Murphy violated his Fourteenth Amendment due process

rights by (1) failing to call an important witness, the officer who issued the misbehavior report;

(2) neglecting to provide Plaintiff with a disposition of the hearing; and (3) being “bias[ed],

prejudice[d], [and by] using inter-departmental loyalty” to deny Plaintiff due process. (SAC p.

3.)

At the conclusion of the hearing, Defendant Murphy administratively dismissed the

charges against Plaintiff. (Stabile Decl. ¶ 6, Ex. E.)

II. Procedural Background

On January 28, 2016, Plaintiff commenced the present action pursuant to 42 U.S.C. §

1983, alleging violations of his Fourteenth Amendment due process rights. (ECF No. 1.) Plaintiff

subsequently amended his Complaint on May 18, 2016. (ECF No. 9.) Then-Defendants moved

to dismiss Plaintiff’s Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1),

for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim, on May 22, 2017.

(ECF No. 35.) On April 20, 2018, the Court issued an Opinion (“2018 Opinion,” ECF No. 55)

granting Defendants’ motion to dismiss because Plaintiff failed to allege that Defendants

deprived him of an interest protected under the Fourteenth Amendment. Brown v. Markham, No.

16-CV-710(NSR), 2018 WL 1918625, at *4 – 5 (S.D.N.Y. Apr. 20, 2018). Although the Court

granted the motion to dismiss, out of deference to Plaintiff’s pro se status, it also granted

1 The exhibit numbers are incorrect in the Stabile Declaration. After comparing the content of the exhibits

to the text of the declaration, the Court understands “Exhibit E” in paragraph 5 to in fact refer to Exhibit D.

Plaintiff leave to amend his Amended Complaint “[t]o the extent . . . that Plaintiff can provide

additional allegations suggesting any atypicality of his keeplock confinement.” Id. at *5.

Plaintiff filed the SAC on June 19, 2018 and Defendant Murphy, the sole remaining Defendant,

filed the motion to dismiss currently before this Court on November 15, 2018. (ECF No. 64.)

LEGAL STANDARDS

To survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

claim is facially plausible when the factual content pleaded allows a court “to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). “While legal conclusions can provide the framework of a complaint,

they must be supported by factual allegations.” Id. at 679. In considering a Rule 12(b)(6)

motion, the Court must take all material factual allegations as true and draw reasonable

inferences in the non-moving party’s favor, but the Court is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v.

Allain, 478 U.S. 265, 286 (1986)) (internal quotation marks omitted). Similarly, the Court is not

required to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a

cause of action.” Iqbal, 556 U.S. at 678.

Further, a court is generally confined to the facts alleged in the complaint for the

purposes of considering a motion to dismiss pursuant to Rule 12(b)(6). Cortec Indus. v. Sum

Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider documents

attached to the complaint, statements or documents incorporated into the complaint by reference,

matters of which judicial notice may be taken, public records, and documents that the plaintiff

either possessed or knew about, and relied upon, in bringing the suit. See Kleinman v. Elan

Corp., 706 F.3d 145, 152 (2d Cir. 2013).

Where, as here, a plaintiff proceeds pro se, the court must construe the complaint

liberally and interpret it to “raise the strongest arguments that [it] suggest[s].” Askew v. Lindsey,

No. 15-CV-7496(KMK), 2016 WL 4992641, at *2 (S.D.N.Y. Sept. 16, 2016) (quoting Sykes v.

Bank of America, 723 F.3d 399, 403 (2d Cir. 2013)). Yet, “the liberal treatment afforded to pro

se litigants does not exempt a pro se party from compliance with relevant rules of procedural and

substantive law.” Id. (quoting Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013)).

DISCUSSION

Plaintiff’s SAC contains no allegations to support a facially plausible claim that

Defendant violated the Fourteenth Amendment’s Due Process Clause.

In its 2018 Opinion, the Court instructed Plaintiff that in order to state a procedural due

process claim, a plaintiff must plausibly allege first that the defendant deprived him of a

cognizable interest in life, liberty, or property and next that the defendant did so without

affording him constitutionally sufficient process. Brown v. Markham, No. 16-CV-710(NSR),

2018 WL 1918625, at *4 (S.D.N.Y. Apr. 20, 2018) (citing Proctor v. LeClaire, 846 F.3d 597,

608 (2d Cir. 2017)). To implicate a liberty interest, prison discipline, such as confinement to

keeplock, must impose an “atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004) (quoting

Sandin v. Conner, 515 U.S. 472, 484 (1995)) (internal quotation mark omitted). As noted in the

2018 Opinion, under precedent in the Second Circuit, Plaintiff’s thirty-day time in keeplock was

not an atypical hardship and therefore was not a deprivation of a liberty interest. Brown, 2018

WL 1918625, at *4 (citing cases). “Courts in this Circuit have consistently found that such

limited periods of segregation do not, without more, constitute ‘atypical and significant

hardships.’ ” Id. (citing Borcsok v. Early, 299 F. App’x 76, 78 (2d Cir. 2008). However, the

Court granted Plaintiff leave to replead if he could provide “additional allegations suggesting any

atypicality of his keeplock confinement” because such allegations could, if atypical and

significant hardships, support a facially plausible Fourteenth Amendment due process claim. Id.

at *5.

Despite this, Plaintiff’s SAC is devoid of any allegations of the conditions of his

keeplock confinement or any other fact suggesting that Plaintiff was deprived of a protected

liberty interest. In fact, the SAC only mentions keeplock twice, once when stating that Plaiintiff’

altercation with another inmate led him “to be keeplocked” and again when noting that Plaintiff

grieved “all claims about [ ] being keeplocked.” (SAC pp. 2 & 4.) Such allegations provide no

insight into the typicality or atypicality of Plaintiff’s time in keeplock. Cf. Borcsok v. Early, 299

F. App’x 76, 78, 2008 WL 4831409, at *2 (2d Cir. 2008) (“Because [Plaintiff] does not complain

of the conditions of his confinement, any protected liberty interest he possessed would be based

upon the duration of his confinement.”); Muhammad v. Corr. Officer Douglas, No. 15-CV-

0935(NSR), 2016 WL 3082657, at *7 (S.D.N.Y. May 25, 2016) (holding that the plaintiff’s

allegations that he received cold meals and was segregated during recreation while in keeplock

were not atypical or significant hardships); Nunez v. Herbert, No. 03-CV-93A(F), 2008 WL

510433, at *3 (W.D.N.Y. Feb. 21, 2008) (denying the plaintiff permission to amend his

complaint because, in part, no allegations in the proposed amended complaint suggested that the

conditions under which the plaintiff was confined in keeplock were atypical). As with his

previous Amended Complaint, which was dismissed in the 2018 Opinion, Plaintiff relies on the

fact that he was confined to keeplock for thirty days to support his Due Process Clause claim.

However, as discussed in the 2018 Opinion and supra in this Opinion, confinement to keeplock

for thirty days, without more, is not a sufficient deprivation of a liberty interest to support a

Fourteenth Amendment claim.2 Without a denial of a cognizable liberty or other protected

interest, there is no violation of the Due Process Clause. Amaker v. Lee, No. 13-CV-5292(NSR),

2019 WL 1978612, at *15 (S.D.N.Y. May 3, 2019); Thompson v. LaClair, No. 08-CV-

0037(FJS)(DEP), 2009 WL 2762164, at *5 (N.D.N.Y. Aug. 25, 2009).

Assuming Plaintiff sufficiently alleged that he was deprived of a cognizable liberty

interest, Plaintiff’s claims against Defendant would fail because he does not plausibly allege that

he was not afforded constitutionally sufficient process.

Plaintiff alleges that Defendant deprived him of an important witness and never called the

witness, but these allegations are not enough to show that Plaintiff was deprived of his due

process right to summon witnesses. Typically, inmates “may request witnesses either before or

during a disciplinary hearing.” Marino v. Humphrey, No. 05-CV-6571(SAS), 2006 WL 2786182,

at *6 (S.D.N.Y. Sept. 27, 2006). The right to call witnesses, however may be waived,

particularly by “failing to make or reiterate a request” for a witness. Id. “[A] prisoner must

object to the hearing officer’s failure to call a requested witness before the close of the hearing,

or he is deemed to have waived that request.” Id. “This is true regardless of whether the

2 In his opposition, Plaintiff cites to several cases in an attempt to show that he has stated a facially

plausible due process claim. However, those cases concern areas of law not at issue here, are inapplicable to the

facts in the SAC, or do not otherwise show that Plaintiff was deprived of a constitutionally protected liberty interest.

For example, Plaintiff cites to Perez v. Hume to support that alleging that a defendant acted out of “inter-

departmental loyalty” is sufficient for a Fourteenth Amendment due process claim. No. 14-CV-6349(FPG), 2017

WL 953204, at *3 (W.D.N.Y. Mar. 10, 2017). However, as discussed infra, Plaintiff failed to show that he was

deprived of any protected interest to trigger due process in the first place. Plaintiff also cites to Dolan v. Connolly,

but for the law for a First Amendment retaliation claim, which is not the issue here. No. 13-CV-5726(GBD)(GWG),

2017 WL 193286, at *4 (S.D.N.Y. Jan. 18, 2017). Plaintiff is correct that the court stated in Russell v. Coughlin that

due process required that an inmate facing a disciplinary hearing have the opportunity to call witnesses, but the court

also indicated that the inmate must first show that he was deprived of a liberty interest. 774 F. Supp. 189 at 194

(S.D.N.Y. 1991).

prisoner requested the witness before or during the hearing, so long as the request was not

specifically denied.” Id. Here, Plaintiff does not allege that he objected to Defendant’s failure to

call a witness at any point before the law suit, not to mention before the close of this hearing.

Plaintiff’s remaining complaints about the process he received during the hearing are

similarly without merit. Taking Plaintiff’s allegation that he never received a written disposition

of the hearing as true, such an error is harmless because the hearing was administratively

dismissed and there are no allegations that Plaintiff received further discipline. Bullock v.

Reckenwald, No. 15-CV-5255(LTS)(DF), 2016 WL 5793974, at *7 (S.D.N.Y. Aug. 24, 2016)

(holding that failure to provide a written statement of the disposition of the hearing does

“not . . . warrant court intervention into prison disciplinary proceedings where those violations

are harmless or non-prejudicial”); Lunney v. Brureton, No. 04-CV-2438(LAK)(GWG), 2007 WL

1544629, at *29 (S.D.N.Y. May 29, 2007) (recommending that the plaintiff’s claim that he was

denied due process because he did not receive a written disposition of his discipline hearing be

denied because any failure to provide the disposition was harmless and did not interfere with the

plaintiff’s ability to raise the alleged illegality of his sentence). Plaintiff also alleges that

Defendant was biased and used “inter-departmental loyalty” to deny him due process, but he

fails to allege any facts supporting these claims. Conclusory allegations of bias are not enough

to show that a plaintiff received constitutionally insufficient process. Salahuddin v. Cuomo, 861

F.2d 40, 43 (2d Cir. 1988) (“[W]e have required pleadings under § 1983 to contain more than

mere conclusory allegations.”); Colon v. Annucci, 344 F. Supp. 3d 612, 638 (S.D.N.Y. 2018)

(dismissing a plaintiff’s due process claim because his statement that a hearing officer was

biased was only supported by conclusory allegations, not “factual details rendering such a claim

plausible”).

Plaintiff has already had two extra bites at the apple; he filed two amended complaints in

addition to his initial complaint. “[T]he court should not dismiss [a pro se 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.” Branum v. Clark, 927 F.2d 698, 705 (2d Cir.

1991). On two occasions, the Court granted Plaintiff permission to amend his Complaint. (ECF

Nos. 7 & 55.) In the 2018 Opinion, the Court carefully outlined the law on what was required to

plead a facially plausible Fourteenth Amendment claim and granted Plaintiff permission to

amend his Amended Complaint to the extent that he could provide any “additional allegations

suggesting any atypicality of his keeplock confinement.” Brown v. Markham, No. 16-CV-

0710(NSR), 2018 WL 1918625, at *5 (S.D.N.Y. Apr. 20, 2018). He again amended his

pleading, but he did not provide any allegations which would support a facially plausible

Fourteenth Amendment claim. Even under a liberal interpretation, the SAC fails to give any

indication that a valid claim might be stated. As the Court has repeatedly stated, thirty days in

keeplock confinement alone does not implicate a liberty interest and there are no other facts in

the SAC to suggest that Plaintiff was otherwise deprived of a protected interest.

Access to the legal system, even by those who cannot afford legal representation, is both

necessary and just, and the Court is sympathetic to the challenges faced by a pro se plaintiff.

However, the Court must also consider judicial economy and its ability to treat each case before

it with due care. If, after a liberal reading and making every reasonable inference in the

plaintiff’s favor, a pro se plaintiff fails to state a claim upon which relief can be granted despite

having received the opportunity to amend his complaint, the Court can dismiss the case under

Rule 12(b)(6) with prejudice. See Caddick v. Personnel Co. I LLC, No. 16-CV-7326(ALC),

2018 WL 3222520, at *8 n.5 (S.D.N.Y. June 29, 2018) (dismissing a plaintiff’s claims with

prejudice because leave to amend would be futile); Ndremizara vy. Swiss Re Am. Holding Corp.,

93 F. Supp. 3d 301, 318 (S.D.N.Y. 2015) (dismissing a pro se plaintiff's complaint with

prejudice because the plaintiff failed to state a plausible claim and because the court had already

twice granted the plaintiff leave to amend his pleading). Litigants, even those proceeding pro se,

must comply with procedural and substantive requirements under the law. Bell v. Jendell, 980 F.

Supp. 2d 555, 559 (S.D.N.Y. 2013). Accordingly, because Plaintiff has previously been granted

leave to file an amended complaint and still fails to state a facially plausible claim, his SAC is

dismissed with prejudice.

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss the SAC with prejudice is

GRANTED. The Clerk of the Court is respectfully directed to terminate the motion at ECF No.

64, mail a copy of this order to the Plaintiff, and file proof of service on the docket. The Clerk of

the Court is also respectfully directed to close this case.

Dated: May 30, 2019 SO ORDERED:

White Plains, New York aa

J

NELSON'S ROMAN

United States District Judge