Bradshaw v. Burns et al, No. 9:2019cv00931 - Document 35 (N.D.N.Y 2020)
Court Description: DECISION AND ORDER: It is hereby ORDERED that the # 31 Amended Complaint, as modified by this Order, is accepted for filing and is the operative pleading; and it is further ORDERED that the Clerk shall revise the docket to add Corrections Office rs Rella, Toozer, Sweet, Rogers, Lynch, Matlock, Pesek, Witzigman, and Glinton as defendants, and identify the "Doe" defendants individually or by group as follows: (1) Corrections Officers John Doe #1-79; (2) Corrections Officer John Doe #80; (3) Corrections Officer John Doe #81; (4) Corrections Officers John Doe #82-84; (5) Corrections Officers John Doe #85-86; (6) Corrections Sergeants John Doe #1-29; (7) Corrections Sergeants John Doe #30-32; and (8) Corrections Sergeant John Doe #33; and it is further ORDERED that the following claims SURVIVE sua sponte review and require a response: (1) plaintiff's Fourth Amendment unlawful search claim against defendant Creigo; (2) plaintiff's Eighth Amendment conditions-o f-confinement claims against defendants Burns, Kotory, Russell, Smoyer, Whitman, Huntley, Trotz, Palmer, Jennings, Rella, Toozer, Corrections Officers Doe #1-79, and Corrections Sergeants Doe #1-29 based on interference with his sleep; (3) plaint iff's Eighth Amendment conditions-of-confinement claims against defendants Huntley, Trotz, Sweet, Rogers, Lynch, Corrections Officer Doe #80, and Corrections Sergeants Doe #30-32 based on denying him access to meals between July 27 and August 1, 2019; and (4) plaintiff's First Amendment free-flow-of-mail claims against defendants Smoyer, Glinton, and Corrections Officers Doe #82-84; and it is further ORDERED that all remaining claims are DISMISSED pursuant to 28 U.S.C. § 1915 (e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted; and it is further ORDERED that upon receipt from plaintiff of the documents required for service, the Clerk shall issue summonses and forward the m, along with copies of the amended complaint, to the United States Marshal for service on defendants Whitman, Creigo, Palmer, Jennings, Rella, Toozer, Sweet, Rogers, Lynch, and Glinton; and it is further ORDERED that plaintiff must continue to tak e reasonable steps to ascertain the identity of the "Doe" defendants remaining in this action, and when identified, seek to amend the amended complaint to add the individuals as defendants in this action pursuant to Federal Rule of Civil Procedure 15(a); and it is further ORDERED that the Clerk of the Court shall provide plaintiff with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (p er curiam). Signed by Judge Brenda K. Sannes on March 9, 2020. (Attachments: # 1 Case Law, # 2 Case Law, # 3 Case Law, # 4 Case Law, # 5 Case Law, # 6 Case Law, # 7 Case Law, # 8 Case Law, # 9 Case Law, # 10 Case Law, # 11 Ca se Law, # 12 Case Law, # 13 Case Law, # 14 Case Law, # 15 Case Law, # 16 Case Law, # 17 Case Law, # 18 Case Law, # 19 Case Law, # 20 Case Law, # 21 Case Law, # 22 Case Law, # 23 Case Law, # 24 Case Law, # 25 Case Law, # (2 6) Case Law, # 27 Case Law, # 28 Case Law, # 29 Case Law, # 30 Case Law, # 31 Case Law, # 32 Case Law, # 33 Case Law, # 34 Case Law, # 35 Case Law, # 36 Case Law, # 37 Case Law, # 38 Case Law, # 39 Case Law, # 40 Case Law, # 41 Case Law, # 42 Case Law, # 43 Case Law, # 44 Case Law, # 45 Case Law)(Copy served via regular mail)(rep)
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Bradshaw v. Burns et al Doc. 35 Att. 13 Gibson v. City of New York, Not Reported in F.Supp. (1998) KeyCite Yellow Flag - Negative Treatment Disagreement Recognized by Curry v. Kerik, S.D.N.Y., April 10, 2001 1998 WL 146688 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Rufus GIBSON, Plaintiff, v. The City of New York; Warden Ortiz; Deputy Warden Edwin Knight; Deputy Warden Clyton Eastmond; John Doe Area Captains (of assigned posts at times of violations of Block 5 South in Otis Bantum Correctional Center CPSU); John Doe Captain (Badge # 878); and John Doe Official, Defendants. No. 96 CIV. 3409(DLC). | March 25, 1998. Attorneys and Law Firms Rufus Gibson, Pro Se, Fishkill Correctional Facility, Beacon. Jeffrey Friedlander, Esq., Acting Corporation Counsel for the City of New York, New York, By Renee Nebens, Esq., Assistant Corporation Counsel. OPINION AND ORDER COTE, District J. *1 On May 9, 1996, Rufus Gibson (“Gibson”) filed this action pursuant to Section 1983 claiming that the defendants had violated his Fourteenth Amendment rights while he was a pretrial detainee, by subjecting him to unconstitutional conditions of confinement and by depriving him of due process prior to a disciplinary confinement. 1 On May 9, 1996, Chief Judge Griesa, to whom this case was then assigned, ordered Gibson to file an amended complaint within sixty days with more specific information to show why he is entitled to relief. On May 23, 1996, the plaintiff filed a slightly more detailed complaint (the “First Amended Complaint”), which was accepted by the Court as meeting the requirements of the May 9, 1996 Order. On March 4, 1997, the defendants filed a motion to dismiss the First Amended Complaint for failure to state a claim. 2 At a March 7, 1997, pretrial conference held on the record, the Court allowed the plaintiff to either oppose that motion or further amend his complaint. On April 7, 1997, the plaintiff filed a Second Amended Complaint which contained more detail and which changed the named defendants to those listed in the caption of this Opinion and Order. The defendants now move to dismiss the Second Amended Complaint for failure to state a claim and the plaintiff moves for the entry of a default judgment against defendant Robert Ortiz (“Ortiz”). 3 For the reasons stated below, the motion to dismiss is granted in part and denied in part and the motion for entry of a default judgment is denied. Background The Court takes as true the facts as alleged in the Second Amended Complaint. Beginning on or about February 10, 1996, Gibson was confined in the Central Punitive Segregation Unit (“CPSU”) 4 at Rikers Island for a period of ninety days after a disciplinary hearing. 5 For the first thirty days of Gibson's CPSU confinement, he was housed at the James A. Thomas Center (“JATC”) even though JATC “was ordered closed due to high levels of asbestos, insect infestation and possibly lead paint” and “the general population inmates were moved to other buildings.” On March 10, 1996, the CPSU was moved to the Otis Bantum Correctional Center (“OBCC”). While Gibson was housed in OBCC CPSU between March 10 and May 16, 1996, he was denied access to recreation on eight occasions (March 10, 11, and 14, April 3, 13, 20, and 22, and May 4), denied access to the law library on four occasions (March 27, 28, and 29, and April 10), denied access to a religious service on March 15, and required to choose between access to recreation and the law library on April 18 and between access to recreation and the barber shop on April 19. Gibson states that he reported each deprivation to defendants Deputy Warden Edwin Knight (“Knight”) and Deputy Warden Clyton Eastmond (“Eastmond”), both of whom failed to intervene or prevent the recurrence of these deprivations. In addition, the plaintiff alleges that Ortiz was aware of the problems because Knight and Eastmond reported to him. *2 Gibson also states that the defendants were deliberately indifferent to his condition as an asthmatic. During a slashing incident in the law library, a John Doe Captain and a corrections officer used a chemical agent (mace) in an attempt to subdue another inmate. While Gibson was not involved in the fight, he was present in the law library at the time and the © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Dockets.Justia.com Gibson v. City of New York, Not Reported in F.Supp. (1998) exposure to the chemical agent triggered an asthma attack. Gibson returned to his cell and used his inhaler to stop the attack. Gibson complains that he was not asked by prison officials if he wanted to see a doctor and was not taken to the prison infirmary. Finally, Gibson claims that his due process rights were violated during the procedure which had led to his confinement in CPSU. On May 1, 1996, after an Article 78 proceeding, the infraction for which Gibson was confined in CPSU was dismissed due to “a late warden signature.” Gibson, however, was not released from CPSU for another fifteen days, that is, until May 16, 1996, his regularly scheduled release date. Gibson daily asked John Doe Area Captains and Knight why he was being held beyond his confinement date. These individuals told Gibson that they had checked and had not received an order for his release. Standard for Motion to Dismiss A court may dismiss an action pursuant to Rule 12(b)(6), Fed.R.Civ.P., only if “ ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief.” ’ Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir.1994) (quoting Conley v. Koenig, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In considering the motion, the court must take “as true the facts alleged in the complaint and draw[] all reasonable inferences in the plaintiff's favor.” Jackson Nat. Life Ins. v. Merrill Lynch & Co. 32 F.3d 697, 699–700 (2d Cir.1994). The Court can dismiss the claim only if, assuming all facts alleged to be true, plaintiff still fails to plead the basic elements of a cause of action. When a plaintiff is proceeding pro se, the court must liberally construe the complaint. See, e.g., Boddie v. Schneider, 105 F.3d 857, 860 (2d Cir.1997). “A complaint should not be dismissed simply because a plaintiff is unlikely to succeed on the merits.” Cir.1995). Baker v. Cuomo, 58 F.3d 814, 818 (2d Discussion violated his constitutional rights, (2) that the defendants interfered with his constitutional right for access to the courts, and (3) that the defendants violated his due process rights in connection with the procedures leading to his confinement in CPSU. The Court considers each of these claims in turn. I. Conditions of Confinement Since the plaintiff was a pretrial detainee at the time of the alleged deprivations, his claims regarding the conditions of his confinement are governed by the Due Process Clause of the Fourteenth Amendment. See Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir.1991) (citing Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). Under the Due Process Clause, the state may subject a pretrial detainee to restrictions that are inherent to confinement in a detention facility so long as those conditions do not amount to punishment. See Bell, 441 U.S. at 536–7. “Not every disability imposed during pretrial detention amounts to ‘punishment’ in the constitutional sense ....” Id. at 537. The Supreme Court has stated that the issue is whether “ ‘the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” ’ Block v. Rutherford, 468 U.S. 576, 584, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984) (quoting Bell, 441 U.S. at 538). *3 While the Supreme Court has not provided specific guidance for determining when a pretrial detainee's rights have been violated, it has held that a person's Due Process rights regarding the conditions of confinement under the Fourteenth Amendment are “at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) (citations omitted). See Bryant, 923 F.2d at 983; Hayes v. New York City Dept. of Corrections, 91 Civ. 4333, 1995 WL 495633 at *5 (S.D.N.Y. Aug.21, 1995). The Supreme Court has articulated a two part test for determining whether an inmate has suffered an injury of a violation of his Eighth Amendment rights. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). First, there is an objective component which, The plaintiff's allegations form the basis for claims (1) that the defendants subjected him to conditions of confinement which © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Gibson v. City of New York, Not Reported in F.Supp. (1998) [f]or a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. Id. (emphasis supplied). Second, there is a subjective component requiring that the prison official have a “sufficiently culpable state of mind,” to wit, be deliberately indifferent to the harmful conditions. Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). In Farmer, the Court rejected an objective test for a defendant's deliberate indifference, and held instead that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer, 511 U.S. at 837 (emphasis supplied). 1. Denial of Access to Recreation Gibson states that he was denied access to recreation on eight occasions and forced to choose between recreation and the law library or the barber shop on two other occasions. When the dates are compared, it appears that he was deprived on only one occasion of the opportunity for recreation on consecutive days—March 10 and 11. 6 While it is well-established that inmates have a right to exercise, see Williams v. Greifinger, 97 F.3d 699, 704 (2d Cir.1996), the deprivation of the opportunity to participate in recreation for eight days in a sixty day period, even when coupled with the deprivation of an opportunity to exercise on two consecutive days, is not sufficiently serious to constitute punishment under the Fourteenth Amendment. See, e.g., Anderson v. Coughlin, 757 F.2d 35, 36 (2d Cir.1985) (an occasional day without exercise during inclement weather is not cruel and unusual punishment); Davidson v. Coughlin, 968 F.Supp. 121, 129 (S.D.N.Y.1997) (collecting cases under Eighth Amendment). 2. Denial of Religious Service Gibson alleges that he was denied access to a religious service on one occasion. This single deprivation is insufficient to state a deprivation that amounts to punishment. See, e.g., Giglieri v. New York City Dep't of Corrections, 95 Civ. 6853, 1997 WL 419250 at *3 (S.D.N.Y. July 25, 1997) (duration is one factor to consider in determining whether a deprivation or condition violates a pretrial detainee's Fourteenth Amendment rights). But see Cruz v. Jackson, 94 Civ. 2400, 1997 WL 45348 at *7 (S.D.N.Y. Feb.5, 1997) (denial of access to religious services for fifteen day period sufficient to state a claim). 3. Medical Claim *4 Gibson further claims that he was denied adequate medical care when a corrections officer used mace to subdue another inmate while Gibson was in the vicinity. Specifically, Gibson complains that no officer asked him if he wanted to go to the infirmary after Gibson suffered an asthma attack. Gibson's allegations fail to meet either component of the test for a violation of his constitutional rights. While asthma may in some circumstances constitute a serious condition, Gibson promptly controlled his asthma attack with his inhaler and does not state that he suffered any further harm. Moreover, since the asthma was promptly controlled, corrections officers were not deliberately indifferent to his medical needs by failing to ask him if he wanted to go to the infirmary. 4. Conditions at JATC Gibson alleges that during the thirty days he was confined at JATC before the CPSU was transferred to OBCC he was exposed to asbestos, insect infestation and perhaps lead paint. Further, he alleges that the CPSU remained at JATC for thirty days after a court order had closed the facility and after general population inmates had been transferred to different facilities. Gibson's allegations are sufficient to state a claim. First, Gibson's allegations regarding the conditions at JATC, coupled with the duration of his confinement there and the alleged existence of a court order closing the facility, are sufficient to describe a substantial risk of serious harm. Second, liberally construing the complaint, Gibson implies © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Gibson v. City of New York, Not Reported in F.Supp. (1998) that the defendants were deliberately indifferent to that substantial risk because it took thirty days for the defendants to move the CPSU after a court order had closed JATC and after the general population inmates had been transferred. [him] in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 482, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The relevant factors which a court must consider to determine if a hardship is “atypical and significant” include: II. Denial of Access to the Law Library The plaintiff alleges that on four occasions he was denied access to the law library and on another occasion he was (1) the effect of disciplinary action on the length of prison confinement; (2) the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions; and (3) the duration of the disciplinary segregation imposed compared to discretionary confinement. forced to choose between the law library and recreation. 7 The Court understands the plaintiff to be complaining of interference with his constitutionally protected right of access to the courts. In order to state a claim for denial of access to the courts, “a plaintiff must demonstrate that a defendant caused ‘actual injury,’ i.e. took or was responsible for actions that ‘hindered [a plaintiff's] efforts to pursue a legal claim.” ’ Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir.1997) (quoting Lewis v. Casey, 518 U.S. 343, ––––, 116 S.Ct. 2174, 2179, 2180, 135 L.Ed.2d 606 (1996)). The actual injury requirement derives from the doctrine of standing. Id. Here, Gibson has not alleged that he was hindered in his efforts to pursue a legal claim. Given that the plaintiff has amended his complaint twice—once after the defendants' first motion to dismiss specifically raised this issue—and that the denial of access occurred at most five times in a sixty day period, the Court finds that granting the plaintiff further leave to amend regarding this allegation would be futile. III. Due Process Violation *5 Gibson claims that his due process rights were violated in two ways. First, there were procedural irregularities in the process by which he was first confined in the CPSU. 8 Second, he was held in the CPSU for fifteen days after his disciplinary sentence had been vacated in an Article 78 proceeding. The Second Circuit has stated that [d]etermining whether an inmate has received due process involves “a two-pronged inquiry: (1) whether the plaintiff had a protected liberty interest in not being confined ... and, if so, (2) whether the deprivation of that liberty interest occurred without due process of law.” Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1997) (quoting Bedoya v. Coughlin, 91 F.3d 349, 351–52 (2d Cir.1996) (ellipses in original)). To show a protected liberty interest arising from state law, an inmate must show that the restraint imposes an “atypical and significant hardship on Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir.1998). See also Sealey, 116 F.3d at 52; Brooks v. Di Fasi, 112 F.3d 46, 49 (2d Cir.1997); Miller v. Selsky, 111 F.3d 7, 9 (2d Cir.1997). The Court will address the third factor—the duration of Gibson's confinement—first. The defendants, citing Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir.1992), argue that Gibson's first due process claim fails since his state challenge cured any procedural defect. Thus, they argue, Gibson was improperly confined for at most fifteen days. The Second Circuit has held, however, that [t]he rule is that once prison officials deprive an inmate of his constitutional procedural rights at a disciplinary hearing and the prisoner commences to serve a punitive sentence imposed at the conclusion of the hearing, the prison officials responsible for the due process deprivation must respond in damages, absent the successful interposition of a qualified immunity defense. Walker v. Bates, 23 F.3d 652, 658–59 (2d Cir.1994). 9 Thus, the Court properly considers the full ninety days © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Gibson v. City of New York, Not Reported in F.Supp. (1998) in determining whether Gibson was deprived of a liberty interest. While ninety days may not always be a significant deprivation, the Court is unable to determine based on the record now presented whether the duration of Gibson's disciplinary segregation—for either the full ninety day or the shorter fifteen day period—is similar to discretionary confinement of pretrial detainees. Similarly, the Court has no basis to make a determination of whether the conditions of disciplinary confinement differ from routine prison conditions—the second factor for consideration. At present, the record is clear as to only one factor, that is, the first factor. Gibson has not claimed that his confinement in CPSU in any way altered the term of his prison confinement. *6 Assuming that Gibson's confinement in the CPSU implicated a protected liberty interest, he has stated a claim for a violation of his due process rights on only one of his two theories. As articulated in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Due Process Clause requires that prisoners be provided with written notice at least 24 hours prior to the hearing of the alleged violation of the disciplinary rules, a written statement indicating what evidence the fact-finder at the hearing relied upon and the reason for the disciplinary action taken, and, if institutional safety requires the omission of certain evidence, a statement indicating the fact of such omission. Id. at 564–65. Gibson has not alleged that he was deprived of any of the procedures required under Wolff at the proceeding for which he was initially confined in the CPSU. Moreover, if the defendants had failed to follow any of these procedures, Gibson would be aware of the deficiency and would not require discovery to state a claim. Thus, Gibson has failed to state a claim on his first theory. As to Gibson's second theory—that he was confined to the CPSU for fifteen days after the Article 78 proceeding vacated his disciplinary sentence—further factual development of the factors described above is required to determine whether fifteen days of disciplinary confinement for a pretrial detainee imposes an “atypical and significant hardship.” IV. Motion for a Default Judgment Default judgments are governed by Rule 55, Fed.R.Civ.P. Rule 55(a) provides for entry of a default “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules.” Rule 55(a), Fed.R.Civ.P. A court “[f]or good cause shown may set aside an entry of default.” Rule 55(c), Fed.R.Civ.P. Although Rule 55(c) applies on its face to setting aside defaults already entered, the same analysis should be employed in evaluating opposition to entry of a default. See Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 243 (2d Cir.1994). The Second Circuit has stated that [g]ood cause depends upon such factors as the willfulness of the default, the prejudice the adversary would incur were the default set aside [or should the Court decline to enter it], and the merits of the defense proffered. In re Chalasani, 92 F.3d 1300, 1307 (2d Cir.1996). In addition, the Court must keep in mind the “oft-stated preference for resolving disputes on the merits.” Enron Oil Corp. v. Diakuhura, 10 F.3d 90, 95 (2d Cir.1993). Here, Gibson asks the Court to enter a default judgment against Ortiz. Gibson has not shown that the default by Ortiz was willful. Ortiz joined the other defendants in moving to dismiss the First Amended Complaint. Only after the plaintiff filed and served a Second Amended Complaint did Ortiz neglect initially to join the motion to dismiss the Second Amended Complaint. Additionally, Gibson has not shown that he would suffer any prejudice from the Court declining to enter the default judgment against Ortiz. Finally, Ortiz may be able to interpose a successful defense; Gibson has not alleged that Ortiz was personally involved in the claims that survive the motion to dismiss. See Sealey, 116 F.3d at 51. 10 Conclusion *7 The defendants' motion to dismiss is granted on all claims, except the plaintiff's claims that he was subjected to unconstitutional conditions of confinement while housed in the JATC CPSU for thirty days and that he was held in the CPSU for fifteen days after his disciplinary sentence had been vacated in an Article 78 proceeding. The plaintiff's motion © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Gibson v. City of New York, Not Reported in F.Supp. (1998) for the entry of a default judgment against defendant Ortiz is denied. SO ORDERED: All Citations Not Reported in F.Supp., 1998 WL 146688 Footnotes 1 2 3 4 5 6 7 8 9 Gibson has since been convicted and transferred to the custody of the New York State Department of Corrections. The motion to dismiss the First Amended Complaint was made on behalf of defendants named in that pleading: the New York City Department of Correction Otis Bantum Correctional Facility, Warden Ortiz, and Deputy Warden Edwin Knight. The instant motion was originally made solely on behalf of the City of New York. After having been served with the Second Amended Complaint in July 1997, defendants Clyton Eastmond and Edwin Knight joined in the motion. On September 23, 1997, the plaintiff moved to have a default judgment entered against Robert Ortiz, who had also been served in July 1997, but who had not filed an answer. On October 7, 1997, Assistant Corporation Counsel Renee Nebens filed a declaration seeking to have Robert Ortiz join in the instant motion. For the reasons described elsewhere in this Opinion, the October 7 request is granted. The defendants explain that the CPSU is the housing area at Rikers Island where inmates who have been disciplined for rules' infractions are housed. The plaintiff does not say when his confinement in CPSU began or for what offense he was confined. The Court has inferred the date on which Gibson's confinement began from the other events for which the plaintiff provides dates. Gibson does not specify which option he chose when he was forced to choose between recreation and the law library or the barber shop. If he chose to forgo recreation on both of these occasions, it is possible that there were also three consecutive days when he did not have recreation—April 18, 19 and 20. This three day deprivation, however, would have been partially the result of a choice made by the plaintiff rather than solely the result of the defendants' actions. The plaintiff does not state which option he chose on this occasion. Gibson identifies the procedural irregularity as a “late warden signature,” but indicates that he requires discovery to determine the exact irregularity which caused the disciplinary decision to be revoked through the Article 78 proceeding. While the Second Circuit has not discussed the issue resolved in Walker since the Supreme Court's decision in Sandin, the Circuit has been faced with fact patterns which indicate that it adheres to the analysis in Walker. See, e.g., 10 Wright, 132 F.3d at 135 (plaintiff's 288 day sentence overturned by Article 78 proceeding and then followed by Section 1983 action for damages); Brooks, 112 F.3d at 48 (plaintiff's 180 day sentence overturned by Article 78 proceeding and then followed by Section 1983 action). While the defendants included in their motion to dismiss the First Amended Complaint an argument based on the plaintiff's failure to allege personal involvement, they have not included such an argument in the instant motion. End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6
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