Javier v. Russo

Background

Al Javier, proceeding without a lawyer and without paying the filing fee in advance, brought a civil-rights action under Section 1983 against Anthony Russo, Sergeant Joseph Rosinsky, C.O. G. Watkins, C.O. James Morrissey, Marilyn Kopp, A. Rodriguez, and Anthony Annucci. Javier alleged that Watkins saw another incarcerated person place suspected contraband in his cell; that Morrissey then pepper-sprayed Javier through the bars without warning while Javier was locked inside; and that prison officials later issued inaccurate disciplinary reports and conducted constitutionally deficient disciplinary proceedings. Javier alleged that he received 45 days of keeplock confinement and lost privileges for 60 days. He sought damages and injunctive relief, including training concerning the use of force.

Javier also alleged that he challenged the disciplinary determination in a state proceeding and that the determination was eventually administratively reversed, although he had already served the punishment. The defendants moved to dismiss the amended complaint under Rules 12(b)(1) and 12(b)(6). Rule 12(b)(1) concerns the court’s subject-matter jurisdiction, while Rule 12(b)(6) tests whether the complaint states a legally sufficient claim.

Rulings on the Claims

The court dismissed Javier’s claims for money damages against Watkins, Kopp, and Morrissey in their official capacities under the constitutional immunity that generally protects states and their officials from such suits in federal court. It also dismissed Javier’s requests for injunctive relief because the complaint described only past events and did not allege an ongoing violation of federal law. The opinion notes that damages claims against Annucci, Russo, Rodriguez, and Rosinsky in their official capacities had already been dismissed with prejudice in an earlier order.

The court dismissed Javier’s claims against Annucci, Russo, Rodriguez, and Rosinsky in their individual capacities because the complaint did not plausibly allege their direct personal involvement in the alleged constitutional violations. The court also dismissed any state-law negligence or assault claims raised in Javier’s opposition, concluding that New York Correction Law Section 24 barred those claims on the allegations presented. A possible conspiracy claim was likewise inadequately pleaded because Javier did not provide facts showing the defendants’ roles, purpose, or agreement.

The court dismissed the First Amendment retaliation claim because Javier alleged no facts, beyond timing, connecting his grievances to the disciplinary punishment. The court dismissed the Fourteenth Amendment procedural due-process claim because 45 days of keeplock and the loss of privileges, as pleaded, did not amount to an unusually serious deprivation of a protected liberty interest. The court also concluded that Javier received sufficient process because he had an evidentiary hearing and was allowed to present favorable witnesses, and that the failure to record the hearing did not itself create a federal constitutional claim.

The court denied dismissal of the Eighth Amendment excessive-force claim against Morrissey. Javier alleged that Morrissey repeatedly pepper-sprayed him through the bars while he was locked in his cell, without warning, while posing no threat, and after officers had seen another person place the suspected contraband in the cell. Accepting those allegations as true at the motion-to-dismiss stage, the court concluded that Javier plausibly alleged that the force was objectively serious and used unnecessarily and maliciously. The court found that Javier did not allege Watkins’s personal involvement in the pepper-spraying and therefore did not allow an excessive-force claim against her.

Disposition and Amendment

The court stated that the motion to dismiss was granted in part and denied in part. All claims were dismissed except the Eighth Amendment excessive-force claim against Morrissey. The court nevertheless granted Javier leave to file a second amended complaint concerning the First Amendment retaliation claim, the Fourteenth Amendment procedural due-process claim, and the excessive-force claim against Morrissey. The second amended complaint was required to replace, rather than supplement, the existing amended complaint and was due by October 30, 2023. If Javier did not file it by that date, only the excessive-force claim against Morrissey would proceed. The deadline for Morrissey to answer was stayed pending that filing deadline. Judge Vincent L. Briccetti also certified that an appeal would not be taken in good faith and denied fee-free status for an appeal.