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Case 9:15-cv-00006-BKS-TWD Document 61 Filed 07/10/17 Page 1 of 282 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ JOHN WILLIS RICHARD, Plaintiff, 9:15-CV-00006 v. (BKS/TWD) LUCIEN J. LECLAIRE, et al., Defendants. _____________________________________________ APPEARANCES: OF COUNSEL: JOHN WILLIS RICHARD Plaintiff pro se 91-A-0169 Eastern NY Correctional Facility Box 338 Napanoch, NY 12458 HON. ERIC T. SCHNEIDERMAN RYAN W. HICKEY, ESQ. Attorney General for the State of New York Assistant Attorney General Counsel for Defendants The Capitol Albany, New York 12224 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION This pro se lawsuit commenced by Plaintiff John Willis Richard under 42 U.S.C. §§ 1983, 1985(3), and 1986 has been referred to this Court for Report and Recommendation by the Hon. Brenda K. Sannes, United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c). The matter is now before the Court on the motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) filed on behalf of Case 9:15-cv-00006-BKS-TWD Document 61 Filed 07/10/17 Page 2 of 282 Defendants Lucien J. Leclaire, Deputy Commissioner of the Department of Correctional Services and Community Supervision (“DOCCS”) in the State of New York; Captain Timothy McCarthy, Auburn Correctional Facility (“Auburn”); Lieutenant Daniel Oleksiw, Auburn; Lieutenant Michael P. Brown, Auburn; Sergeant Anthony P. Volpe, Auburn; Corrections Officer (“C.O.”) Gary C. Gibson, Auburn; C.O. Michael Woodard, Auburn; Lieutenant Wayne Jordan, Sullivan Correctional Facility (“Sullivan”); Lieutenant Garry Sipple, Sullivan; C.O. Joseph Daddezio, Sullivan; Sergeant Paul Mace, Sullivan; and C.O. Jeremy McGaw, Upstate Correctional Facility (“Upstate”).1 (Dkt. Nos. 46, 52, 53.) The suit arises out of actions taken by Defendants in response to Plaintiff’s long-time practice of shaving designs into his beard. (See generally Dkt. No. 1.) The claims remaining after initial review of the complaint by the District Court are: (1) Fourteenth Amendment due process claims against Defendants Brown, Jordan, and Giglio, arising out of disciplinary hearings and appeals2; (2) First Amendment retaliation claims against Defendants Gibson, Volpe, Woodard, McCarthy, Burns, and Brown involving the issuance of a false inmate misbehavior report (“IMR”) and the rigging of the disciplinary hearing on the IMR; (3) Fourteenth Amendment due process vagueness claim against Leclaire regarding DOCCS 1 Plaintiff’s complaint was dismissed as against ten of the original Defendants upon initial review under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. (Dkt. No. 10.) Summonses were returned unexecuted as to Defendants Burns and Giglio. (Dkt. No. 37.) There has been no appearance on behalf of Burns and Giglio, and they are not parties to the motion to dismiss. (Dkt. No. 46.) Defendant Oleksiw was added as a movant subsequent to the filing of the motion papers. (Dkt. No. 53.) 2 Fourteenth Amendment due process claims arising out of the disciplinary hearings and appeals alleged against Defendants John Doe #1 and John Doe # 2 also survived initial review. (Dkt. No. 10 at 39.) However, they have not yet been identified and served and are not part of the motion to dismiss. (Dkt. No. 46.) 2 Case 9:15-cv-00006-BKS-TWD Document 61 Filed 07/10/17 Page 3 of 282 Directive 4914; (4) Fourteenth Amendment equal protection claims against Defendants Gibson, Volpe, Woodard, Burns, McCarthy, Brown, McGaw, Jordan, Daddezio, Sipple, Mace, and Giglio; and (5) various conspiracy claims against Gibson, Volpe, Woodard, Burns, McCarthy, Oleksiw, Brown, Jordan, Sipple, Daddezio, Mace, and Giglio. (Dkt. No. 10 at 39.3) The moving Defendants seek dismissal on statute of limitations grounds of the following claims: (1) Brown’s denial of Plaintiff’s Fourteenth Amendment right to procedural due process in a disciplinary hearing; (2) Fourteenth Amendment vagueness claim against LeClaire; (3) First Amendment retaliation claim against Gibson, Volpe, Woodard, McCarthy, and Brown; (4) conspiracy claim against Gibson, Volpe, Woodard, McCarthy, Oleksiw, and Brown; and (5) denial of Plaintiff’s Fourteenth Amendment right to equal protection at Auburn by Gibson, Volpe, Woodard, McCarthy, Brown, and at Upstate by McGaw. (Dkt. No. 46-1 at 5-13.) Defendants also seek dismissal for failure to state a claim of Plaintiff’s Fourteenth Amendment claims for denial of procedural due process against Brown, Jordan, and Giglio in disciplinary hearings held on IMRs and an appeal. Id. at 13-15. In addition, Defendants claim they are entitled dismissal of conspiracy claims against Gibson, Volpe, Woodard, Burns, McCarthy, Oleksiw, Brown, Jordan, Sipple, Daddezio, Mace, and Giglio for failure to state a claim and as barred under the intracorporate conspiracy doctrine. Although on initial review, the District Court required Defendants to respond with regard to the Fourteenth Amendment equal protection claim against Jordan, Sipple, Daddezio, Mace, and Giglio asserted independent of Plaintiff’s conspiracy claim (Dkt. No. 10 at 39), those Defendants have not moved to dismiss 3 Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk’s Office. 3 Case 9:15-cv-00006-BKS-TWD Document 61 Filed 07/10/17 Page 4 of 282 the claim. (Dkt. No. 46-1 at 16-18.) Consequently, the Court does not consider Plaintiff’s independent equal protection claim against Jordan, Sipple, Daddezio, and Mace to be a part of this motion to dismiss and will not consider it. Plaintiff has filed papers in opposition to Defendants’ motion. (Dkt. Nos. 59, 59-1.) For reasons explained below, the Court recommends that Defendants’ motion to dismiss be granted in part and denied in part. I. BACKGROUND A. DOCCS Directive 4914 The stated purpose of DOCCS Directive 4914, dated September 2, 2010, and entitled “Inmate Grooming Standards,” is to “to ensure that inmate appearance will be regulated sufficiently to maintain accurate identification of each individual.” (Dkt. No. 1-2 at 6-7.) Section III, Paragraph B of the Directive sets forth general grooming standards for DOCCS inmates. Id. at 7. Paragraph B, subsection 1, entitled “Beards and Mustaches,” provides that absent a court order restraining DOCCS from enforcement or a religious exemption, “an inmate may grow a beard and/or mustache, but the beard/mustache hair may not exceed one (1) inch in length.”4 Id. Paragraph B, subsection 2 is entitled “Hair.” Id. Subsection 2(a) provides, inter alia, that inmates are allowed only one straight part in their hair, “with no other lines, designs, or symbols cut into the hair.” Id. 4 The Court takes judicial notice that Directive 4914, Section III, Paragraph B, subsection 1 regarding beards and mustaches was amended subsequent to the time period relevant to this lawsuit to include the language “NOTE: Patterns, designs, or braids are not allowed.” See Directive 4914, dated March 1, 2013, in Michel v. Manna, No. 9:15-cv-01187 (N.D.N.Y., Dkt. No. 1-1 at 20.)) 4 Case 9:15-cv-00006-BKS-TWD Document 61 Filed 07/10/17 Page 5 of 282 B. 2008 Inmate Misbehavior Report On July 8, 2008, while Plaintiff was housed at Wende Correctional Facility (“Wende”), C.O. Lemke filed an IMR against him for violation of Rule 106.10 violating a direct order.5 (Dkt. No. 46-5 at 22.) Plaintiff, who claims to have been shaving exotic styles into his beard for over twenty years, was described in the IMR as having “unusual and unauthorized designs cut into his facial hair.” Id.; Dkt. No. 1-2 at 35. Plaintiff was charged with twice refusing orders to come into compliance with paragraph B, subsection 2 of Directive 4914, which prohibited “lines, designs, or symbols cut into” an inmate’s hair. (Dkt. No. 1-2 at 7.) The hearing officer found Plaintiff not guilty of the charge, noting that there were no regulations regarding beards in Directive 4914 other than the one inch rule, and the design in Plaintiff’s beard did not appear to be gang related. Id. at 17-18. C. Gibson’s October 5, 2010, IMR at Auburn On October 5, 2010, Auburn C.O. Gibson filed an IMR against Plaintiff charging him with violation of Rule 106.1 violating a direct order, Rule 110.32 beard length, and Rule 110.31 change of appearance from ID card.6 (Dkt. No. 1-2 at 15.) According to the IMR, Gibson observed that Plaintiff had a “designer beard” while the two were in the school basement 5 Rule 106.10 provides that “an inmate shall obey all orders of department personnel promptly and without argument.” (Dkt. No. 46-5 at 17.) 6 Rule 110.31 provides that: “An inmate shall pay the cost of a replacement ID card whenever the inmate’s appearance is changed as a result of a beard, mustache, or change in hair length or color. Refusal to voluntarily pay for replacement cost may result in restitution being imposed through the disciplinary process.” (Dkt. No. 46-5 at 13.) Rule 110.32 provides that absent a court order or religious exemption “[a] inmate shall not grow a beard or mustache over one inch in length.” Id. 5 Case 9:15-cv-00006-BKS-TWD Document 61 Filed 07/10/17 Page 6 of 282 at Auburn. Id. Plaintiff showed Gibson the old misbehavior report disposition from 2008, and Gibson told him it had no bearing on the present. Gibson ordered Plaintiff to shave his beard or trim off the design, and Plaintiff responded “lock me up, I’m not changing a thing.” (Dkt.