Javier v. Russo

Background

Al Javier, representing himself, brought a civil-rights action under Section 1983 against Anthony Russo, Sergeant Rosinsky, Correction Officers Watkins and Morrissey, M. Kopp, and A. Rodriguez. The opinion states that all defendants were employees of the New York State Department of Corrections and Community Supervision. Javier alleged that Morrissey used pepper spray against him while he was compliant and inside his cell; that defendants denied him procedural protections during a disciplinary hearing; and that defendants falsified or destroyed reports and hearing records to conceal misconduct.

The disciplinary charges arose after Javier poured an unfamiliar liquid substance into a toilet. He was later found guilty and sentenced to 60 days in keeplock confinement, with 15 days suspended, and 60 days without package, phone, and commissary privileges. After Javier challenged the disciplinary determination in a state-court proceeding, the determination was administratively reversed after the hearing records allegedly could not be produced.

Motion to Dismiss and Official-Capacity Claims

Defendants filed a partial motion to dismiss 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 a complaint adequately states a claim.

The court held that the Eleventh Amendment barred Javier’s claims for money damages against the defendants in their official capacities. Although prospective injunctive relief can sometimes proceed against state officials, the court held that Javier had not plausibly alleged an ongoing violation of federal law. His allegations concerned past incidents and did not show that defendants were engaged in a continuing pattern of unconstitutional conduct. The court therefore dismissed all official-capacity claims for lack of subject-matter jurisdiction.

Claims Pleaded Without Permission to Amend

The court explained that an earlier order had dismissed all claims from Javier’s first amended complaint except his Eighth Amendment excessive-force claim against Morrissey in Morrissey’s individual capacity. The earlier order allowed Javier to replead only his First Amendment retaliation claim and his Fourteenth Amendment procedural-due-process claim, both against defendants in their individual capacities. Javier chose not to replead the retaliation claim. The court dismissed the other claims in the second amended complaint because they were outside the permission previously granted.

The court also stated that Javier’s Eighth Amendment excessive-force claim against Morrissey had already been allowed to proceed and was not dismissed by this order.

Procedural Due-Process Claim

The court dismissed Javier’s Fourteenth Amendment procedural-due-process claim. To state that type of claim, a prisoner must plausibly allege a protected liberty interest and an inadequate process that caused its deprivation. A prison disciplinary sanction creates a protected liberty interest only when it imposes an atypical and significant hardship compared with ordinary prison life.

Javier alleged that he spent 45 days in keeplock, was confined to his cell for 23 hours a day, could not attend religious services or therapeutic programs, lacked recreation, and lost package, phone, and commissary privileges. The court held that these alleged conditions were consistent with ordinary disciplinary segregation and did not plausibly show an atypical and significant hardship. Because Javier did not adequately allege a protected liberty interest, the court dismissed the procedural-due-process claim.

Disposition

The court granted defendants’ partial motion to dismiss. Javier’s Eighth Amendment excessive-force claim against Morrissey in Morrissey’s individual capacity remains pending. All other claims were dismissed, and Russo, Rosinsky, Watkins, Kopp, and Rodriguez were terminated from the docket. Morrissey was ordered to answer the second amended complaint by May 14, 2024. The court also certified that any appeal would not be taken in good faith and denied Javier permission to proceed without paying filing fees for an appeal.