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Gill v. Mooney

decided: July 16, 1987.

ANTHONY G. GILL, PLAINTIFF-APPELLANT,
v.
JAY MOONEY, MARY FARRELL, P. RUDNICKEY, B. WARD, F. HUNT, MASON, BUMP, E. CORCORAN, MICHAEL WRIGHT, DELUCA, JIM KELLY, ANN CONNERS, RATHBUN, G. MARCAU, DENNO, ANN HATCH, MARY TRAPMAN AND E. W. JONES, DEFENDANTS-APPELLEES



Appeal from a judgment entered in the United States District Court for the Northern District of New York (McCurn, J.) dismissing pro se prisoner's civil rights complaint under 42 U.S.C. § 1983. Affirmed in part and reversed in part.

Author: Van Graafeiland

Before FEINBERG, Chief Judge, VAN GRAAFEILAND and PIERCE, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

Anthony Gill, a pro se plaintiff, appeals from a judgment of the United States District Court for the Northern District of New York (McCurn, J.) dismissing his civil rights complaint. 42 U.S.C. § 1983. Although we agree with the district court that many of plaintiff's allegations fail to state claims of constitutional dimension, we believe that several portions of his 124-paragraph complaint allege colorable claims for relief. Accordingly, we affirm in part and reverse in part.

Plaintiff, a State prisoner, sued eighteen officers and employees of the Great Meadow Correctional Facility, including correctional officers, nurses, librarians, teachers, a gym supervisor, and the prison superintendent. He was permitted to sue in forma pauperis pursuant to 28 U.S.C. § 1915(a). Service of process was attempted through the mail, and sixteen defendants were served. Two of the summonses, addressed to defendants "Mary Trapman, R.N." and "G. Marcau, Gym Instructor," were returned with a note from the prison records office stating that nobody with either name was employed at the Facility.

An answer was filed on behalf of the sixteen defendants who were served. After Gill's request for appointment of counsel was denied, he served written interrogatories upon those defendants and later moved for an order compelling answers to his interrogatories. Defense counsel then cross-moved for an order dismissing the complaint as to the sixteen defendants for failure to state a claim. Fed. R. Civ. P. 12(b)(6). The motions were referred to Magistrate Edward Conan, who recommended that the defendants' motion be granted and that Gill's motion be denied as moot. The Magistrate's recommendations were adopted by Judge McCurn in a summary order. This is an appeal from that order.

At the outset, we are confronted with a question concerning the scope of the district court's order. Although the motion to dismiss was made only on behalf of the sixteen defendants who had been served and appeared, the district court's order dismissed the complaint "as to all defendants." Despite the apparent broad scope of the quoted words, we believe the district court intended the word "defendants" to include only those who were served, had appeared and moved to dismiss. See cases collected in 11A Words and Phrases at 340. We are bolstered in this belief by our confidence that the able district judge knew our general policy of disapproving sua sponte dismissals of pro se prisoner petitions before service and appearance. See, e.g., Massop v. Coughlin, 770 F.2d 299, 301 (2d Cir. 1985) (per curiam). We limit our discussion therefore to the claims against the sixteen moving defendants.

WORK ASSIGNMENTS

Gill contends that he was denied due process of law by changes in his work assignments that were neither requested by him nor authorized by the prison's program committee. These claims were properly dismissed. New York law does not give a prisoner "any statutory, regulatory or precedential right to his prison job." Cooper v. Smith, 63 N.Y.2d 615, 616, 479 N.Y.S.2d 519, 468 N.E.2d 701 (1984) (mem). Accord, Owens v. Coughlin, 561 F. Supp. 426, 428 (S.D.N.Y. 1983). It merely provides that the State commissioner or prison officials "may" provide jobs for prisoners. N.Y. Correct. L. § 171(1). This is not the "language of an unmistakably mandatory character" that is indicative of a liberty or property interest. Hewitt v. Helms, 459 U.S. 460, 471, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983); see Board of Pardons v. Allen, 482 U.S. 369, 55 U.S.L.W. 4799, 4801-02 n.10, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987). "If the decisionmaker is not 'required to base [his] decisions on objective and defined criteria,' but instead 'can deny the requested relief for any constitutionally permissible reason or for no reason at all,' the State has not created a constitutionally protected liberty interest." Olim v. Wakinekona, 461 U.S. 238, 249, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983) (quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 466-67, 69 L. Ed. 2d 158, 101 S. Ct. 2460 (1981)). Any other rule would involve the judiciary in discretionary decisions that are not the business of federal judges. See Cofone v. Manson, 594 F.2d 934, 939 (2d Cir. 1979) (citing Meachum v. Fano, 427 U.S. 215, 228-29, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976)).

Of course, a claim for relief may be stated under section 1983 if otherwise routine administrative decisions are made in retaliation for the exercise of constitutionally protected rights. Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam). That possibility is obliquely raised in an affidavit filed by Gill in the district court, in which he conclusorily alleges that the job transfer were intended to punish and harass him. However, recognizing the possibilities for abuse in claims of this sort, we have insisted on a higher level of detail in pleading them and have held that "a complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone." Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). Since that is the situation here, the district court did not err in dismissing appellant's work assignments claims.

PERSONAL INJURIES

Gill alleges that he was injured when he fell off a ladder that he was forced to use in a painting assignment given him by defendants Rudnickey and Mooney. With respect to Rudnickey, the district court correctly held that Gill has not alleged any facts sufficient to state a claim of constitutional dimension. Although Gill alleges that the ladder was defective, he does not allege that Rudnickey had any prior notice of the unsafe condition. He alleges only that Rudnickey forced him to paint despite his complaints that paint fumes made him "dizzy and nauseous." In the absence of any medical proscriptions known as Rudnickey, his decision to ignore Gill's complaints amounted to nothing more than a mere negligent act, which is not a violation of either the Fourteenth Amendment, Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986), or the Eighth Amendment, Whitley v. Albers, 475 U.S. 312, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986).

Gill's claims against Mooney stand on a different footing. Gill alleges that Mooney ordered him to continue working after Gill had informed Mooney that the ladder was unsafe. In his affidavit submitted in opposition to defendants' motion to dismiss, Gill asserts that Mooney's actions amounted to deliberate and willful indifference, Liberally construed under pro se pleading standards, Gill's allegations against Mooney "involve more than ordinary lack of due care for the prisoner's interests or safety," Whitley v. Albers, supra, 475 U.S. at 319, and therefore state a colorable claim under the Eighth and Fourteenth Amendments. See Bass v. Jackson, 790 F.2d 260, 262-63 (2d Cir. 1986); Villante v. Dep't of Corrections of City of New York, 786 F.2d 516, 519 (2d Cir. 1986).

Because of the injury suffered by Gill in his fall from the ladder, prison doctors prescribed a neck brace and a firm bed board for his use. Gill alleges that on a number of occasions various defendants ordered him to perform work assignments that were inconsistent with those work restrictions. In every case, however, Gill refused to perform the required work and the disciplinary charges against him were dismissed. By his own admission, therefore, those portions of the ...


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