Santana v. Durfee

PS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

JUAN SANTANA,

Plaintiff,

-v- 20-CV-0246-LJV

ORDER

SERGEANT DUFEE,1 et al.,

Defendants.

___________________________________

INTRODUCTION

The pro se plaintiff, Juan Santana, was a prisoner confined at the Orleans

Correctional Facility (“Orleans”) when he filed this action. He asserts claims under

42 U.S.C. § 1983 and alleges that the defendants violated his Eighth and Fourteenth

Amendment rights. Docket Item 1. He also has moved to proceed in forma pauperis

(that is, as a person who should have the prepayment of the ordinary filing fee waived

because he cannot afford it). Docket Item 2.

Because the plaintiff meets the statutory requirements of 28 U.S.C. § 1915(a)

and has filed the required certification, Docket Item 2 at 2, and authorization, Docket

Item 1 at 21, the Court grants his motion to proceed in forma pauperis. Therefore,

under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a), the Court screens the complaint. For

the reasons that follow, one of the plaintiff's claims may proceed, but the remaining

1 Santana alternates between two spellings: “Dufee” and “Duffee.” See Docket

Item 1. For the sake of consistency, the Court will refer to this defendant as “Dufee.”

claims will be dismissed under sections 1915(e)(2)(B) and 1915A unless he files an

amended complaint correcting the deficiencies addressed below.

DISCUSSION

Section 1915 “provide[s] an efficient means by which a court can screen for and

dismiss legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)

(citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The court shall dismiss a

complaint in a civil action in which a prisoner seeks redress from a governmental entity,

or an officer or employee of a governmental entity, if the court determines that the

action (1) fails to state a claim upon which relief may be granted or (2) seeks monetary

relief against a defendant who is immune from such relief. See 28 U.S.C.

§ 1915A(b)(1)-(2). Generally, the court will afford a pro se plaintiff an opportunity to

amend or to be heard prior to dismissal “unless the court can rule out any possibility,

however unlikely it might be, that an amended complaint would succeed in stating a

claim.” Abbas, 480 F.3d at 639 (citation omitted); see also Cuoco v. Moritsugu, 222

F.3d 99, 112 (2d Cir. 2000) (“A pro se complaint is to be read liberally. Certainly the

court should not dismiss 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.”

(quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999))). But

leave to amend pleadings may be denied when any amendment would be “futile.” Id.

I. SCREENING THE COMPLAINT

In evaluating the complaint, the court accepts all factual allegations as true and

draws all inferences in the plaintiff’s favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d

Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). “Specific

facts are not necessary,” and the plaintiff “need only ‘give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551

U.S. 89, 93 (2007) (alteration in original) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007)); see also Boykin v. Keycorp, 521 F.3d 202, 213 (2d Cir. 2008)

(“[E]ven after Twombly, dismissal of a pro se claim as insufficiently pleaded is

appropriate only in the most unsustainable of cases.”). Although “a court is obliged to

construe [pro se] pleadings liberally, particularly when they allege civil rights violations,”

McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted

pro se must meet the notice requirements of Rule 8 of the Federal Rules of Civil

Procedure, see Wynder v. McMahon, 360 F.3d 73, 76 (2d Cir. 2004).

Santana has sued six New York State Department of Corrections and

Community Supervision (“DOCCS”) officials employed at the Wyoming Correctional

Facility (“Wyoming”) for using excessive force against him, in violation of his Eighth

Amendment rights, and for denying him due process of law, in violation of his

Fourteenth Amendment rights.2 See Docket Item 1 at 1-2. More specifically, he has

2 Liberally construed, the complaint also might raise claims for denial of adequate

medical care, in violation of the Eighth Amendment. A claim of inadequate medical care

rises to the level of a constitutional violation only when a defendant, operating under

color of law, was deliberately indifferent to the plaintiff’s serious medical needs. Estelle

v. Gamble, 429 U.S. 97, 104-05 (1976). To the extent Santana seeks to bring such a

claim, he must amend the complaint, if possible, to include factual allegations showing

(1) that he suffered from ‟[a] serious medical condition”—that is, a condition “where the

failure to treat . . . could result in further significant injury or the unnecessary and

wanton infliction of pain,” and (2) that Wyoming officials both knew of and “disregard[ed]

that risk by failing to take reasonable measures to abate it,” see Harrison v. Barkley,

219 F.3d 132, 136-137 (2d Cir. 2000) (citations omitted).

If Santana amends his complaint to attempt to state such a claim, he also must

allege which defendants knowingly disregarded his medical issues, or name those

sued “Sergeant Dufee” and “John Doe Prisoner Guards” Nos. 1-4 for using excessive

force and “Hearing Officer Heary” for denying him due process of law. A liberal reading

of the complaint tells the following story.

On April 11, 2018, Santana underwent a circumcision at the Attica Correctional

Facility, after which he was transferred to Wyoming. Id. at 3. Santana asked to be

housed in the infirmary. Id. That request was denied, but medical staff gave Santana

gauze pads, topical cream, and aspirin. Id. at 4.

On April 13, 2018, Santana sought additional time off programs because the

incision was not healed. Id. “The nurse who ha[d] authority to provide medical leave

programs denied his request,” and Santana “was forced to work and attend programs in

spite of [his] medical condition or face disciplinary sanctions.” Id. On April 15, 2018, a

Wyoming infirmary doctor determined that Santana’s incision “was not healing correctly”

and told Santana to visit the infirmary every 48 hours. Id. Despite this

recommendation, “[i]t would be weeks” before Santana saw that doctor again. Id.

On April 27, 2018, the same infirmary doctor removed Santana’s stitches. Id. at

5. The affected area began to hurt, swell, and bleed. Id. From April 27, 2018, through

May 10, 2018, Santana sought treatment during sick call twice a week. Id. No nurse

officials who did so as additional defendants, and explain exactly what each defendant

did or did not do in causing the claimed injuries. More specifically, in the “Prisoner

Complaint Form,” Santana should name any additional officials he wishes to sue in the

“Caption of Action” (page one) and the “Parties to This Action: Defendant’s Information

Note” (page two), and Santana should include the factual details in the “Statement of

Claim” section (pages four to six). If Santana does not know the names of the officials

allegedly responsible for denying him adequate medical care, he may name them as

additional John or Jane Does, but he should provide enough information—e.g., position

or job title, shift and location worked, physical description, etc.—to enable DOCCS to

identify them. See Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997) (per curiam).

would provide Santana with a topical cream, but a doctor did provide “small amounts.”

Id. Santana “continually [ran] out” of the cream. Id. Because the bathroom was “used

by 60 men and an unsanitary place to apply [the] ointment,” Santana “was forced to

apply the topical cream to the affected area in his sleeping quarters of his cubical, which

is four-foot-tall with very little privacy.” Id.

On May 10, 2018, Santana moved his “large locker to obstruct the view of the

dormitory,” so that he would have some privacy to apply the cream. Id. A female prison

guard making rounds “attempt[ed] to sneak up” on Santana, “probably because she

[saw] his large locker facing outside his cube and thought something suspicious was

going on.” Id. When she saw him applying cream to his penis, she was “caught off

guard [and] began to bark direct orders for him to pull up his pants.” Id. at 6. Santana

complied, and the prison guard immediately ran to her desk; “in a panic state,” she

called for help. Id.

Defendants Dufee and John Does Nos. 1-4 “rushed” into Santana’s dorm, and

the female prison guard accused Santana of lewd conduct. Id. Santana, who is “of

Spanish descent with a modicum of English speaking abilities,” attempted to explain the

circumstances. Id. The following then occurred:

Prison guards pounced on [Santana], slammed him to the ground face first,

handcuffed him and literally dragged him to special housing unit (hereinafter

“SHU”). While in SHU still handcuffed Sergeant Dufee and 4 other prison

guards brutally choked and punched him, kicked [him and], kick[-]stomped

on him, [paying] special attention to his groin area. While he was down on

the floor, prison guards maintained chokehold, while other guards spit on

him and Sergeant Dufee kicking him fervidly in his groin area. [Santana’s]

groin was already affected immediately burst open puss and began to bleed

profusely.

Id. at 6-7. As a result, “a huge cyst like bulge [began] to grow on [Santana’s] penis,”

and he now experiences “continuous pain while he urinates, and . . . [he] suffers from

erectile dysfunction that seems permanent.” Id. at 7.

On May 11, 2018, “CO Bartolotta, S A,” issued a misbehavior report against

Santana. Id. at 16, 18. On May 16, 2018, defendant Heary conducted a Tier III

disciplinary hearing on the charges of refusing a direct order and lewd conduct. Id. at 7,

18. During the hearing, Santana called as witnesses medical staff “who testified to the

fact that [Santana] did have a serious medical personnel [sic] to apply topical cream to

that area.” Id. at 7. Santana also testified through an interpreter that he did not engage

in lewd conduct. Id.

Heary “solely relied” on the misbehavior report and found Santana guilty of

refusing a direct order and engaging in lewd conduct. Id. at 18. Heary sanctioned

Santana to 45 days in the SHU, 45 days loss of all privileges, and three months

recommended loss of good time. Id. at 7, 18. Santana appealed, and, on August 2,

2018, the DOCCS Commissioner reversed Heary’s decision. Id. at 8, 20.

Santana seeks $10,000,000 in damages. Id. at 13-14.

II. SECTION 1983 CLAIMS

“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the

challenged conduct (1) was attributable to a person acting under color of state law, and

(2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or

laws of the United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir.

1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). “Section 1983

itself creates no substantive rights; it provides only a procedure for redress for the

deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir.

1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).

A. Excessive Force (Eighth Amendment) Claims

Santana alleges that Dufee and John Does #1-4 used excessive force against

him in violation of his Eighth Amendment right to be free from cruel and unusual

punishment. “[T]he core judicial inquiry [for such a claim] is . . . whether force was

applied in a good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citing Whitley v.

Albers, 475 U.S. 312 (1986)). This inquiry includes both subjective and objective

components. Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994).

The objective component considers the “seriousness of the injury.” Id.

Under the Whitley approach, the extent of injury suffered by an inmate is

one factor that may suggest “whether the use of force could plausibly have

been thought necessary” in a particular situation, “or instead evinced such

wantonness with respect to the unjustified infliction of harm as is tantamount

to a knowing willingness that it occur.”

Hudson, 503 U.S. at 7 (quoting Whitley, 475 U.S. at 321). “The absence of serious

injury is . . . relevant to the Eighth Amendment inquiry, but does not end it.” Id. In

deciding whether force was applied to maintain discipline or simply to cause harm, the

Court also looks at the subjective component: whether the defendant possessed a

“wanton” state of mind while engaging in the use of force.

In determining whether the use of force was wanton or unnecessary, it may

also be proper to evaluate the need for application of force, the relationship

between that need and the amount of force used, the threat reasonably

perceived by the responsible officials, and any efforts made to temper the

severity of a forceful response.

Id. at 6-7 (citation omitted). Thus, while the Eighth Amendment “excludes from

constitutional recognition de minimis uses of physical force,” a plaintiff who was not

seriously injured still may state a cognizable Eighth Amendment claim if “the use of

force is . . . of a sort repugnant to the conscience of mankind.” Id. at 9-10.

Here, Santana alleges that prior to the alleged assault, he “attempted to explain

himself and clear up the whole misunderstanding by showing Sergeant Dufee that it

was topical cream he was applying.” Docket Item 1 at 6. But Dufee and John Does

Nos. 1-4 “were there to hurt him” and promptly “pounced on him, slammed him to the

ground face first, handcuffed him and literally dragged him to [the SHU].” Id. At the

SHU and while Santana still was handcuffed, the defendants “brutally choked and

punched [Santana], kicked [him and], kick[-]stomped on him, [paying] special attention

to his groin area.” Id. While Santana was on the floor, the defendants “maintained

chokehold, while other guards spit on him and Sergeant Dufee kicking him fervidly in his

groin area . . . [until it] burst open puss and began to bleed profusely.” Id. at 6-7.

Santana further alleges that “while he was having a medical crisis,” the defendants paid

specific attention to and intentionally kicked him in his groin. Id. at 12. Those

allegations, taken as true, are sufficient to state a viable excessive-force claim.

B. Due Process (Fourteenth Amendment) Claim

Santana also alleges that defendant Heary denied him due process of law during

his disciplinary hearing. To state a due process claim with respect to a prison

disciplinary hearing, an inmate-plaintiff must allege that (1) “the confinement or restraint

complained of create[d] an ‘atypical and significant hardship . . . in relation to the

ordinary incidents of prison life,’” Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)

(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)); and (2) “the state ha[d] granted

its inmates, by regulation or by statute, a protected liberty interest in remaining free from

that confinement or restraint,” id. (quoting Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.

1996)). The inmate then must show that in imposing the confinement or restraint, the

defendant denied the inmate some aspect of the process he was due, namely “[i]

advance written notice of the charges; [ii] a fair and impartial hearing officer; [iii] a

reasonable opportunity to call witnesses and present documentary evidence; [or iv] a

written statement of the disposition, including supporting facts and reasons for the

action taken,” see Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004) (citation omitted); see

also id. at 488 (“[T]he requirements of due process are satisfied if some

evidence supports the decision by the prison disciplinary board . . . .” (alteration in

original) (quoting Superintendent v. Hill, 472 U.S. 445, 455 (1985))).

Here, Santana asserts that Heary “sought to suppress evidence and covered for

her co-workers actions and deprived [Santana] of his day at hearing.” Docket Item 1 at

11. He further asserts that “even a brief investigation would of [sic] shown he was

clearly under medical self care and only applying topical cream to the affected area.” Id.

at 7, 10.

Even assuming that Santana might succeed in showing that he was denied an

impartial hearing officer or that Heary’s decision was not supported by “some evidence,”

Santana has failed to allege that the discipline Heary imposed—45 days in the SHU3—

constituted an “atypical and significant hardship . . . in relation to the ordinary incidents

of prison life,” see Cruz, 202 F.3d at 597 (citation omitted). To be sure, the Second

3 The Court assumes that the other sanction—loss of three months of good time,

see Docket Item 1 at 7, 18—was vacated when the DOCCS Commissioner reversed

Heary’s decision. If that is not the case, Santana also may include that information in

his amended Fourteenth Amendment claim.

Circuit has “explicitly avoided a bright line rule that a certain period of SHU confinement

automatically fails to implicate due process rights.” Palmer v. Richards, 364 F.3d 60,

64-65 (2d Cir. 2004) (emphasis added). But it also has explained that “SHU

confinements of fewer than 101 days” generally can meet this threshold only “if the

conditions were more severe than the normal SHU conditions . . . or a more fully

developed record showed that even relatively brief confinements under normal SHU

conditions were, in fact, atypical.” Id. Because Santana has not alleged that his 45-day

confinement in the SHU involved uniquely severe conditions, his claim for denial of due

process is subject to dismissal.

Nevertheless, and in light of Santana’s pro se status, see generally Cuoco, 222

F.3d at112, the Court will permit him to amend his complaint, if possible, to include

specific factual allegations showing that the “conditions of his [disciplinary] confinement

. . . were dramatically different from the basic conditions of [his] indeterminate

sentence,” Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996).

C. John Doe Defendants

With respect to the excessive force claim asserted against John Does Nos. 1-4,

and pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), DOCCS

shall ascertain the full names of John Does Nos. 1-4. DOCCS also shall provide an

address where these defendants may be served. DOCCS need not undertake to

defend or indemnify these individuals at this juncture. This order merely provides a

means by which Santana may name and properly serve the defendants as instructed by

the Second Circuit in Valentin.

DOCCS shall produce the information specified above regarding the identities of

John Does Nos. 1-4 within 35 days of the date of this order. The information shall be

forwarded to the Court’s Pro se Unit, United States District Court, 2120 Kenneth B.

Keating Federal Building, 100 State Street, Rochester, New York 14614. Once this

information is provided, Santana’s complaint shall be deemed amended to reflect the

names of the defendants in place of John Does Nos. 1-4, and the United States

Marshals Service shall effect service.

CONCLUSION

Because Santana meets the statutory requirements of 28 U.S.C. § 1915(a) and

has filed the required documents, the Court grants his request to proceed in forma

pauperis. But any claims other than his for excessive force will be dismissed under 28

U.S.C. §§ 1915(e)(2)(B) and 1915A(b) unless he files an amended complaint within 45

days of the date of this order that corrects the deficiencies noted above and otherwise

complies with Rules 8 and 10 of the Federal Rules of Civil Procedure. Santana’s claim

for excessive use of force may proceed.

Santana is advised that an amended complaint is intended to completely

replace the prior complaint in the action and thus “renders [any prior complaint] of no

legal effect.” Int’l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977); see also

Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Therefore, any

amended complaint must include all allegations against each of the defendants so that

the amended complaint stands alone as the only complaint that the defendants must

answer in this action.

ORDER

In light of the above,

IT IS HEREBY ORDERED that Santana’s motion to proceed in forma pauperis,

Docket Item 2, is GRANTED; and it is further

ORDERED that Santana may amend his claim for denial of due process, as well

as any claim for denial of medical care, within 45 days of the date of this order; and it

is further

ORDERED that the Clerk of the Court shall send to Santana with this order a

copy of the original complaint, a blank section 1983 complaint form, and the instructions

for preparing an amended complaint; and it is further

ORDERED that if Santana does not file an amended complaint correcting the

deficiencies noted above within 45 days of the date of this order, any claim other

than his claim for excessive use of force will be dismissed without further order and the

Clerk of Court shall terminate Heary as a defendant in this action; and it is further

ORDERED that DOCCS shall provide the Court with the names and addresses

of John Does Nos. 1-4—or a statement of written reasons why such identification is

improper or impossible—within 35 days of the date of this order; and it is further

ORDERED that DOCCS’s failure to comply with this order may result in

sanctions under Rule 37 of the Federal Rules of Civil Procedure; and it is further

ORDERED that if Santana does not file an amended complaint within 45 days

of the date of this order, the Clerk of Court shall cause the United States Marshals

Service to serve copies of the summons, complaint, and this order upon defendants

Dufee and John Does Nos. 1-4 (once identified), without the plaintiff’s payment therefor,

unpaid fees to be recoverable if this action terminates by monetary award in the

plaintiff’s favor; and it is further

ORDERED the Clerk of Court shall forward a copy of this order by email to

Michael Russo, Assistant Attorney General in Charge, Buffalo Regional Office

<Michael.Russo@ag.ny.gov>; and it is further

ORDERED, under 42 U.S.C. § 1997e(g), that once served, the defendants shall

answer the complaint; and it is further

ORDERED that Santana shall notify the Court in writing if his address changes.

The Court may dismiss the action if Santana fails to do so.

SO ORDERED.

Dated: April 8, 2020

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE