13-699

Willey v. Kirkpatrick

UNITED STATES COURT OF APPEALS

F OR THE S ECOND C IRCUIT

_______________

August Term, 2014

(Argued: April 1, 2015 Decided: August 28, 2015)

Docket No. 13

‐ 699

_______________

A ARON W ILLEY

,

Plaintiff

‐ Appellant

,

—v.—

R OBERT A. K IRKPATRICK

, M. M ONAHAN

, M ARTAIN K ERNEY

, S COTT L AMBERT

,

T AYLOR R OBERTS

, M. S ZTUK

, A. A LLESSANDRO

, M. O VERHUFF

, T OM S CHOELLKOPFL

, J EFF J ESZORSKI

,

Defendants

‐ Appellees.

_______________

B e f o r e: K ATZMANN

, Chief Judge

, P OOLER and C ARNEY

, Circuit Judges

.

_______________

Appeal from a judgment of the United States District Court for the Western

District of New York (Telesca, J. ), which granted summary judgment to the

defendants and dismissed all of the plaintiff’s claims brought under 42 U.S.C.

§ 1983. We conclude that the grant of summary judgment conflicts with Rule 56(f)

of the Federal Rules of Civil Procedure because it reached, sua sponte and2 without notice, claims not briefed in the defendants’ motion. We also vacate the

district court’s conclusion that the plaintiff failed to state claims for unsanitary

conditions and retaliation, and we write to clarify the legal standard for such

claims. Finally, we revive Willey’s claims for inadequate nutrition, theft of legal

documents, harassment, malicious prosecution, and false imprisonment as

sufficiently alleged, and provide guidance for the district court on remand.

Accordingly, we VACATE the judgment and REMAND for further proceedings

consistent with this opinion.

_______________

R YAN A. L EMA (Timothy W. Hoover and Michael S. Silverstein, on the

brief ), Phillips Lytle LLP, Buffalo, New York, for Plaintiff

‐ Appellant

.

R OBERT M. G OLDFARB

, Assistant Solicitor General, for Andrea Oser,

Deputy Solicitor General, Barbara D. Underwood, Solicitor

General, and Eric T. Schneiderman, Attorney General of the

State of New York, Albany, New York, for Defendants

‐ Appellees

.

_______________

K ATZMANN

, Chief Judge :

Plaintiff

‐ Appellant Aaron Willey alleges that, while incarcerated in New

York, he endured a cruel campaign of harassment at the hands of corrections

officers in retaliation for his refusal to provide false information against another

inmate. The course of retaliatory conduct he alleges included smaller indignities

like frequent harassment and a week’s worth of meals that were nutritionally

inadequate. But Willey also alleges that he was on three occasions exposed to3 unsanitary conditions of confinement in violation of the Eighth Amendment. The

most grotesque exposure Willey alleges is that officers placed him in solitary

confinement with a Plexiglas shield restricting the airflow to his small cell and

then incapacitated his toilet, so that he was reduced to breathing a miasma of his

own accumulating waste. The two other alleged exposures to unsanitary

conditions involved Willey’s detention in an observation cell whose walls and

mattress were smeared with feces and stained with urine. Willey alleges further

retaliatory conduct including theft of his legal documents, malicious prosecution,

and false imprisonment.

Willey proceeded pro se below, naming as defendants several corrections

officers and their supervisors at the Wende Correctional Facility, in Alden, New

York, where Willey was incarcerated during the events alleged in his complaint.

When these defendants moved to dismiss the complaint for failure to state a

claim, the district court (Siragusa, J. ) denied the motion in its entirety. Several

years later, the district court (Telesca, J. ) granted the defendants’ motion for

summary judgment, deciding in sum and substance that Willey’s amended

complaint failed to state a claim. The district court’s grant of summary judgment4 in part on grounds not raised by the movants, without notice to Willey or an

opportunity for him to respond, conflicts with Rule 56(f) of the Federal Rules of

Civil Procedure. As to those grounds that were raised by the defendants, the

district court’s conclusion that Willey’s complaint failed to state a claim rested on

an erroneous legal foundation.

In this opinion, we first reiterate the proper standard for granting summary

judgment on grounds not raised by the movant, which was not met here. Second,

we clarify the standard for a claim for unconstitutional retaliation. Third, we

disagree with the district court’s analysis of Willey’s claim for unsanitary

conditions. Fourth, we revive Willey’s claims for nutritionally inadequate meals,

theft of legal documents, harassment, malicious prosecution, and false

imprisonment. Finally, we suggest to the district court that on remand Willey

receive appointed counsel, an opportunity to take further discovery, and leave to

file a second amended complaint.5 BACKGROUND

I. Willey’s Complaint

This summary of the relevant factual background we draw principally from

the allegations in Willey’s complaint, because, as we will explore further, the

defendants’ motion for summary judgment rested entirely on the legal sufficiency

of the allegations of the complaint and not on any evidence. Willey, pro se, filed

his original typewritten complaint on August 31, 2007, and filed his handwritten

amended complaint on April 7, 2010. Because they are substantively identical,

with one exception discussed below, this recitation cites to allegations in the

original complaint, all of which appear also in the amended complaint. Compare

Compl., J.A. 17–36, with Am. Compl., J.A. 158–172.

Beginning at age 18, Willey was incarcerated at the Wende Correctional

Facility in Alden, New York, from April 2004 until October 2006, although during

this period he was housed for five months at the Central New York Psychiatric

Facility. The events giving rise to this suit all occurred at Wende, and the

defendants are Wende corrections officers, hearing officers, and their supervisors

who were employed there during Willey’s incarceration. Willey alleges that, on6 October 15, 2005, he was approached on his way to evening recreation by

Sergeant Scott Lambert, who stopped Willey and requested identification.

Corrections officer Taylor Roberts then performed a pat frisk of Willey, which

uncovered nothing unusual. Nevertheless, Roberts handcuffed Willey and

escorted him “into a room with no cameras or witnesses present.” J.A. 20. In this

room, Willey alleges, the following took place:

I was questioned by defendant LAMBERT about another prisoner

who was supposedly smuggling drugs into the prison. I explained

that I had no knowledge or recollection of involvement with this

person, nor did I even know who this person was. Defendant

LAMBERT then opened a desk drawer and pulled out what

appeared to be a weapon or piece of metal. Defendant LAMBERT

placed this piece of metal on the desk between us, and threatened me

by stating, “Either you work with us as an informant or you are

going to be charged with a weapon.” At this time I stopped talking

completely, to which defendant LAMBERT responded, “Have it your

way.” Corrections officers then took me to the WCF special housing

unit (solitary confinement) where I was in fact falsely imprisoned.

Id. 1

1 In this and subsequent quotations from Willey’s complaint, the

defendants’ motion for summary judgment, and the district court decision, we

have taken the liberty of correcting typographical errors for clarity’s sake.7 Two days later, on October 17, Willey “was issued a false misbehavior

report alleging false charges that [he] was in possession of a weapon/contraband.”

Id. At a hearing held on October 19, Willey was adjudged guilty of the shank

‐

possession charge, but he alleges that he was never told that the hearing was to

occur nor provided with the opportunity to attend or to present witnesses or

evidence. Willey appealed internally to the statewide Special Housing Unit

director in Albany, Donald Selsky, who reversed the finding of guilt and ordered

a new hearing. At the new hearing, Willey was allowed to appear, but the hearing

officer Martain Kerney allegedly threatened to beat Willey and called him a

“young punk.” Id. at 22. Kerney eventually ejected Willey and found him guilty in

absentia, sentencing him on December 28, 2005, principally to 180 days of solitary

confinement (also known as Special Housing Unit or the “S.H.U.”). Willey filed

another appeal with Selsky.

With his appeal pending, Willey remained in solitary confinement. Willey

alleges that he was “continuously harassed psychologically, emotionally,

verbally, and sexually by corrections officers but particularly by defendant A.

ALLESSANDRO.” Id. at 28. This conduct included, while watching Willey8 shower, Sergeant Allessandro “licking his lips and blowing kisses toward

[Willey].” Id. Just over a month into his time in solitary confinement, on

November 26, 2005, Willey alleges that he was escorted by Allessandro and

corrections officer M. Sztuk to the shower, and upon Willey’s return found his cell

“trashed, i.e., toilet flooded, water all over; legal paperwork, books, personal

letters scattered all over and out of their original places.” Id. at 23. That evening,

Willey asked Sztuk for a search contraband slip to document what happened, to

which Sztuk responded by threatening Willey with worse punishments if he

persisted.

Willey also allegedly learned from other inmates confined near his cell that

they had seen Sztuk removing Willey’s “rolled up legal paperwork.” Id. at 24.

Willey then shouted that he wanted to speak to a supervisor, to which

Allessandro replied that Willey should give it a rest or he would soon be moved

to the restricted side of solitary. “I’m not giving it a rest—you people stole my

legal paperwork,” answered Willey. Id. Sztuk then responded, “What’s that

Willey, you said you are going to ‘shit us down’?,” prison argot for throwing

feces or urine at a corrections officer. Id. Willey denied having made the threat.9 Because Allessandro and Sztuk said that Willey made this threat against

them, he was moved to the restricted side of solitary, and a Plexiglas cell shield

was placed over the bars, preventing air circulation. In Willey’s complaint, he

alleges:

For the entire duration of time I was behind the cell shields,

defendant A. ALLESSANDRO subjected me to various forms of

harassment including turning off my toilet water pressure, so that I

couldn’t flush my toilet, thereby forcing me to stay in a cell with

restricted air circulation and breathe in urine/feces odors. At all times

mentioned defendant JEFF JESZORSKI was the acting sergeant

supervising defendants A. ALLESSANDRO, M. SZTUK, and M.

OVERHUFF, and allowed them to harass plaintiff, and abdicated his

legal duty to stop and prevent above

‐ listed defendants from

harassing plaintiff; defendant JEFF JESZORSKI also participated in

harassing plaintiff.

Id. at 25 (citation omitted).

Sztuk issued Willey an allegedly false misbehavior report, on November 28,

2005, which stated that Sztuk had read Willey’s lips and that Willey had mouthed

a threat to throw his waste at Sztuk. After a hearing at which Willey testified and

cross

‐ examined Sztuk, Willey was found guilty and sentenced principally to 90

days of solitary confinement. Willey once again filed an appeal with Selsky.10 On December 18, 2005, corrections officer M. Overhuff approached Willey’s

cell after dinner. Willey alleges:

I placed my cups, tray, and utensils on the feed

‐ up port so defendant

OVERHUFF could see I was turning everything in (this was my

usual practice). However, defendant M. OVERHUFF purposely with

intent to harass and annoy plaintiff refused to take my garbage. On

December 19, 2005, I was issued a false misbehavior report written by

defendant M. OVERHUFF alleging I refused to turn in my garbage

on December 18, 2005.

Id. at 26–27. For the week before the hearing on this misbehavior report, Deputy

Superintendent of Security M. Monahan placed Willey on a pre

‐ hearing restricted

diet that, Willey alleges, was “most definitely cruel and unusual punishment as

per it consists of nothing more than a loaf of bread (usually stale) and dried

‐ up

cabbage.” Id. at 27.

At the hearing for this misbehavior report on January 3, 2006, hearing

officer Tom Schoellkopfl allegedly refused to permit Willey to question a witness

and then removed Willey from the hearing. Schoellkopfl then allegedly told

Willey, “You are going to die in the S.H.U.—you young punk.” Id. at 28.

Schoellkopfl found Willey guilty and sentenced him on January 10, 2006,11 principally to 30 days of solitary confinement. As he had with each previous

finding of guilt, Willey filed an administrative appeal with Selsky.

Willey left solitary confinement on February 9, 2006:

All of the above

‐ noted harassments that I was being subjected to

resulted in my becoming severely depressed and attempting suicide

by swallowing numerous ibuprofen pills.

. . . I was taken via

ambulance to Erie County Medical Center. While inside the

ambulance, I was strapped down to a gurney, handcuffed, and

shackled. Someone inserted a needle into my arm and someone

placed a gas mask over my face. From this point forward I don’t

remember anything until I woke up strapped to a bed in ECMC.

Id. at 29. Willey alleges that, before suffering the cruelty of Wende’s officers, he

“had no significant mental

‐ health issues and was not taking any mental

‐ health

medication.” Id. He attributes to the officers’ conduct “a significant amount” of

his mental

‐ health problems. Id.

When Willey returned from the hospital to Wende, he was placed “into a

mental

‐ health observation cell that was extremely filthy and smelled of

urine/feces.” Id. Willey remained “naked in the observation cell for 14 days”

before he was transferred to the Central New York State Psychiatric Center for

about five months. Id. When he returned to Wende, on July 28, 2006, Willey was

once again placed “into an extremely dirty observation cell,” which “had urine12 stains on the floor and fecal stains on the walls and mattress. The smell in the cell

was extremely bad.” Id. at 30. Willey remained there until August 24, 2006, when

he was sent back to solitary confinement.

The final misbehavior report issued to Willey was served the next day and

alleged that he had “kicked a corrections officer while in handcuffs and feet

restraints on February 10, 2006,” while he was being returned to Wende from the

hospital. Id. Following a hearing, Schoellkopfl found Willey guilty and sentenced

him principally to 180 days of solitary confinement. Willey once again appealed

to Selsky.

Willey sent a letter to Wende Superintendent Robert A. Kirkpatrick on

September 17, 2006, which related Willey’s belief that he had been falsely charged

and unfairly sentenced to solitary confinement and also requested his release to

the general population within Wende. By letter dated October 4, 2006, Kirkpatrick

declined to take action. Willey also filed with the Attorney General of the State of

New York a Notice of Intention to File a Claim, see N.Y. Ct. Cl. Act § 10,

concerning Willey’s treatment in custody. Finally, on October 19, 2006, Willey was

transferred from Wende to the Attica Correctional Facility.13 Many of the administrative appeals that Willey filed with Selsky met with

success. In addition to his first appeal, already mentioned, which prevailed on

procedural grounds, Willey’s appeal from his conviction for possession of the

shank was also successful—Selsky reversed that conviction on February 28, 2006.

That same day, Selsky also reversed the conviction related to dinner

‐ tray

collection. These decisions arrived a few weeks after Willey’s attempted suicide.

Selsky did affirm, on February 17, 2006, the conviction for Willey’s threatening to

throw feces or urine at Sztuk. Selsky also affirmed, on December 5, 2006, the

conviction for Willey’s kicking an officer, although Selsky halved the sentence

from six months of punishment to three months. Willey served this sentence at

Attica.

Willey learned, on November 28, 2006, after his transfer to Attica, that he

had been criminally charged in Alden Town Court for the same alleged

conduct—possessing a shank—for which he was originally punished with

solitary confinement and on which he prevailed in his first two administrative

appeals. The criminal charge was allegedly supported by a deposition from

Roberts attesting that Willey had possessed the shank at Wende. Willey again14 denied having ever possessed a shank, both in person and in a lengthy letter to

the presiding judge, Justice LaDuca, who dismissed the criminal charges on April

3, 2007.

II. Proceedings Below

All these alleged facts appeared in Willey’s complaint, which the

defendants moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. The district court (Siragusa, J. ) denied the motion in its entirety,

finding that Willey’s allegations stated viable claims and that the defendants were

not entitled to qualified immunity. See J.A. 119–28, Decision and Order, Willey v.

Kirkpatrick et al.

, No. 07

‐ cv

‐ 6484 (W.D.N.Y. Oct. 9, 2009). The district court noted

that, although false misbehavior reports generally do not give rise to a claim

under 42 U.S.C. § 1983, they do when combined with a deprivation of due process

at the resulting hearing or when done in retaliation for the exercise of a

constitutional right. The district court observed “that it is unclear whether there is

a constitutional right ‘not to snitch.’ ” Id. at 125 n.2.

The district court referred the case to a magistrate judge for “non

‐

dispositive pre

‐ trial matters.” Id. at 128. The defendants answered on October 23,15 2009, denying all of the complaint’s allegations and admitting only that they were

employed at Wende in 2005. Willey moved for partial summary judgment on

January 11, 2010. This motion was denied sua sponte by the district court without

prejudice to its reassertion after discovery concluded. Willey, with leave from the

district court, filed his amended complaint on April 7, 2010, and the defendants

filed an identical answer on June 14, 2010. The defendants answered

interrogatories but were not deposed. The defendants moved for summary

judgment on February 21, 2012. Willey opposed that motion and moved for

appointment of counsel on March 22, 2012. The district court denied Willey’s

motion for appointment of counsel on May 2, 2012. With the motion for summary

judgment fully briefed, Judge Siragusa ordered the case transferred to Judge

Telesca on January 24, 2013. Eleven days later, Judge Telesca granted summary

judgment to the defendants in a 26

‐ page decision, the decision from which Willey

takes this appeal. See J.A. 656–81, Decision and Order, Willey v. Kirkpatrick et al.

,

No. 07

‐ cv

‐ 6484 (W.D.N.Y. Feb. 4, 2013).

The defendants’ Rule 56 statement in support of their motion for summary

judgment was unusual, spanning only ten paragraphs of facts about which, they16 contended, “there is no genuine issue to be tried.” J.A. 607. The first two

paragraphs of the Rule 56 statement recited that Willey was incarcerated at

Wende and that the defendants worked there. The next seven paragraphs

recounted some of the allegations Willey made in his complaint, and the final

paragraph noted that the defendants denied all the claims in their answer. See id.

at 607–09. The defendants attached as evidence only Willey’s Certified Inmate

Record. See id. at 614–23.

The defendants’ brief in support of their motion for summary judgment

was similarly unorthodox. In its telling, the defendants:

move[d] for summary judgment on a variety of grounds: that the

plaintiff has nothing more than his own subjective belief that he has

been subjected to unlawful harassment stemming from false

misbehavior reports, and [that] the alleged incidents do not amount

to a legally cognizable claim upon which relief can be granted as a

matter of law.

Id. at 624–25. In keeping with this framing, the brief argued that various of the

claims in Willey’s complaint were legally insufficient, e.g.

, “Claim[s] against

defendants Lambert and Roberts fail to state a claim upon which relief can be

granted as a matter of law.” Id. at 626. The defendants’ brief characterized the

claims in Willey’s complaint as seeking redress for (1) being placed in mechanical17 restraints; (2) being ejected from a hearing; (3) having his cell “trash[ed]” and

property stolen; and (4) being confined behind cell shields, being issued false

misbehavior reports, and receiving inadequate nutrition. See id. at 626–30. The

defendants also urged that respondeat superior was an insufficient basis on which

to sustain a constitutional claim against Superintendent Kirkpatrick. See id. at 630.

Willey opposed the motion with an eight

‐ page document that contained

both legal arguments and factual averrals. He styled the document as a

declaration, writing, “I, Aaron Willey, do hereby declare under penalty of perjury

that all of the foregoing information is true to the best of my knowledge and

belief.” Id. at 651. Willey’s declaration pointed out that the defendants’ brief

covered only some of his claims, stating that “there are other events not described

by the defendants that constituted violations of the plaintiff’s constitutional

rights,” including malicious prosecution and unsanitary conditions of

confinement. Id. at 645.

The district court’s February 4, 2013 decision and order (Telesca, J. ), from

which this appeal is taken, began with a recitation of facts “drawn from the

pleadings and discovery documents on file,” and viewed in the light most18 favorable to Willey. Id. at 657. The decision recounted five principal incidents

alleged in the complaint: (1) the October 2005 misbehavior report for possessing a

weapon and the resulting solitary confinement; (2) the November 2005

misbehavior report for threatening to attack officers with human waste and the

resulting cell shields and water shut

‐ off; (3) the December 2005 misbehavior

report for refusing to turn in a food tray and the resulting restricted diet; (4) the

harassment in solitary confinement and the resulting suicide attempt and

confinements in the mental

‐ health observation cells; and (5) the August 2006

misbehavior report for kicking an officer. See id. at 658–63.

In its analysis, the district court first noted that “to maintain an actionable

claim against correction[s] officers for filing a false misbehavior report, the inmate

must be able to show either (1) that he was disciplined without adequate due

process as a result of the report; or (2) that the report was issued in retaliation for

exercising a constitutionally protected right.” Id. at 666–67. The district court

analyzed only the first of these options, stating, “Willey ha[d] not alleged that the

misbehavior reports were issued in retaliation for his exercise of a constitutionally

protected right.” Id. at 667. The district court reasoned that although Willey’s19 exclusion from the disciplinary hearing “was violative of Willey’s state regulatory

rights

. . . , his federal constitutional rights were not violated thereby.” Id. at 669.

Turning to the alleged destruction of Willey’s property, including legal

documents, the district court stated that “even the intentional destruction of an

inmate’s property by a prison officer does not violate the Due Process Clause if

the state provides that inmate with an adequate post

‐ deprivation remedy.” Id.

Accordingly, Willey’s claim that Sztuk and Allessandro “stole legal documents

from his cell, and destroyed his personal property” failed to state “an actionable

constitutional claim because New York state law provides him with an adequate

post

‐ deprivation remedy, i.e., § 9 of the Court of Claims Act.” Id. at 669–70.

Regarding the claim of harassment, the district court reasoned that because

Willey did not allege “uninvited physical or sexual contact” by Allessandro, his

“annoying conduct and comments, unaccompanied by physical threats or attacks,

do not amount to a constitutional violation.” Id. at 671.

The district court then analyzed Willey’s claim for unsanitary conditions of

confinement, notwithstanding that the defendants “failed to address [it] in their

motion for summary judgment.” Id. Canvassing our precedents and those of sister20 circuits, the district court discerned a circuit split “[w]here an inmate’s exposure

to waste lasts for three or four days.” Id. at 674 (internal quotation marks

omitted). The district court found Willey’s allegations insufficient:

Especially because Willey has adequately pleaded maliciously willful

conduct by C.O. Allessandro, rather than mere negligence, the

alleged shut

‐ off of the running water to Willey’s toilet for several

days places this case on the borderline between the levels of

discomfort to be expected in prison and unacceptable, inhumane

conditions. After reviewing the cases cited above, however, the Court

concludes that on the particular facts presented here, Willey’s

conditions

‐ of

‐ confinement claim cannot withstand summary

judgment. First, Willey is vague as to the dates that the alleged shut

‐

off occurred, and has made conflicting allegations about the duration

(“extensive lengths of time” versus “seven days” versus the time

between December 1, 2005, and January 10, 2006). Second, Willey has

not claimed that human waste from his toilet overflowed into his cell.

Third, Willey has not claimed that he suffered sickness or other ill

effects as a result of the malodorous atmosphere caused by the water

shut

‐ off.

Id. at 675–76 (citations omitted).

Finally, the district court also found insufficient Willey’s claim for

inadequate nutrition while placed on a restricted diet for one week by Monahan.

“Courts in this Circuit routinely have dismissed claims similar to Willey’s, finding

that the inmate failed to establish that he experienced a sufficiently serious

deprivation for purposes of the Eighth Amendment.” Id. at 677–78. Accordingly,21 the district court granted the defendants’ motion for summary judgment and

dismissed Willey’s Amended Complaint in its entirety. This appeal timely

followed.

DISCUSSION

I. Standard of Review and Summary Judgment

Our standards of review are familiar. We review de novo a dismissal under

Rule 12(b)(6) for failure to state a claim, and we must reverse if the complaint

contains sufficient factual matter that, accepted as true, states a plausible claim for

relief. See Cruz v. TD Bank, N.A.

, 711 F.3d 261, 267 (2d Cir. 2013). We employ the

same standard of review for a judgment on the pleadings under Rule 12(c). See

Hayden v. Paterson

, 594 F.3d 150, 160 (2d Cir. 2010). And we review de novo a

grant of summary judgment under Rule 56, construing all evidence in the light

most favorable to the non

‐ moving party. See Ruggiero v. Cty. of Orange

, 467 F.3d

170, 173 (2d Cir. 2006). We affirm summary judgment only where “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). Because Willey was pro se below, we must22 interpret his papers liberally “to raise the strongest arguments that they suggest.”

Burgos v. Hopkins

, 14 F.3d 787, 790 (2d Cir. 1994); see also Fed. R. Civ. P. 8(e).

The parties disagree about the standard we should use to review the

decision below. Willey, who is counseled on appeal, argues that we should

review the decision as having been made under Rule 12(b)(6) or Rule 12(c)

because it “essentially accepted the facts as alleged in Mr. Willey’s complaint, and

dismissed each claim for failure to state a claim based on those allegations.”

Appellant’s Br. 19. The defendants, by contrast, urge us to review the decision as

a routine grant of summary judgment. “The fact that the district court found that

certain of plaintiff’s allegations, even with evidentiary support, failed to state

viable claims at all does not alter the procedural context of the court’s order—a

duly interposed motion for summary judgment by defendants

. . . .” Appellees’

Br. 12.

It is true, as Willey contends, that the district court’s decision rested entirely

on its view that Willey’s complaint failed to state a claim for which relief may be

granted. Without engaging in any consideration of facts produced by the limited

discovery in this case, the district court nominally granted summary judgment23 under Rule 56 but was in effect granting judgment as a matter of law on the

pleadings under Rule 12(c). Cf. Johnson v. Pelker

, 891 F.2d 136, 139 n.2 (7th Cir.

1989) (“Without expressly saying so, the district court by granting summary

judgment, effectively on the pleadings, treated the motion as one to dismiss under

[Rule] 12(b)(6).”). But the distinction is immaterial to our standard of review,

which we conduct de novo in either case, and we see no reason why legal issues

may not be decided at summary judgment.

But a grant of summary judgment must comport with the Federal Rules of

Civil Procedure. Rule 56 does permit a sua sponte grant of summary judgment

dismissing a claim—but only under certain conditions. Entitled “Judgment

Independent of the Motion,” Rule 56(f) permits a district court to grant summary

judgment “on grounds not raised by a party.” Fed. R. Civ. P. 56(f)(2). But a district

court may do so only “[a]fter giving notice and a reasonable time to respond.”

Fed. R. Civ. P. 56(f). Because the district court did not provide Willey with notice

that it would consider grounds not raised in the defendants’ brief in support of

their motion, we must vacate the judgment to the extent that it exceeded the

grounds raised in that motion.24 The motion was threadbare. The district court itself acknowledged that it

was providing more to the defendants than their motion sought, writing that the

defendants “failed to address this conditions

‐ of

‐ confinement claim in their

motion for summary judgment.” J.A. 671. For this reason alone, we would

reinstate Willey’s claim for unsanitary conditions of confinement. Some of the

claims that the defendants did cursorily address in their motion were

nevertheless decided by the district court on grounds not raised in the motion. To

do so without notice and an opportunity to respond runs counter to Rule 56(f).

The defendants did address, for example, Willey’s claim for theft of his

legal documents, but their only argument was a non sequitur: Willey “alleges no

facts tending to show that, in an ordinary random cell search, property is not

seized and cells are not turned upside down and inside out.” J.A. 628. The district

court wisely declined to dismiss Willey’s claim on that reasoning. Instead, the

district court held that there could be no claim even for intentional deprivation of

property where the state provides an adequate post

‐ deprivation remedy, here,

section 9 of the New York Court of Claims Act. Even if it were true that this

generic property

‐ deprivation law provides an adequate remedy for the theft of25 legal documents, the district court erred in granting summary judgment on that

claim, without notice to Willey or an opportunity for him to respond, on grounds

that appeared nowhere in the defendants’ moving papers.

Accordingly, we cannot affirm the judgment of the district court as to those

parts of its decision that rested on grounds not raised by the defendants. Those

parts include the claim for unsanitary conditions, the claim for theft of legal

documents, and the claim for harassment. See J.A. 626–30. They also include

Willey’s claims for malicious prosecution and false imprisonment, which went

unmentioned both in the motion and the decision, and which we discuss further

below. This conclusion does not end our discussion, because we identify a

number of critical legal errors, which the district court, we respectfully conclude,

committed in analyzing the sufficiency of several of Willey’s allegations.

II. Retaliation

The first of the many allegedly false misbehavior reports that Willey

received charged him with possession of a shank. In general, a “prison inmate has

no constitutionally guaranteed immunity from being falsely or wrongly accused

of conduct which may result in the deprivation of a protected liberty interest.”26 Freeman v. Rideout

, 808 F.2d 949, 951 (2d Cir. 1986). The district court correctly

noted two exceptions to this rule: when an inmate is “able to show either (1) that

he was disciplined without adequate due process as a result of the report; or (2)

that the report was issued in retaliation for exercising a constitutionally protected

right.” J.A. 666–67 (citing Freeman

, 808 F.2d at 951–53, and Franco v. Kelly

, 854 F.2d

584, 589–90 (2d Cir. 1988)). The district court analyzed only the first of these

exceptions, reasoning that “Willey has not alleged that the misbehavior reports

were issued in retaliation for his exercise of a constitutionally protected right.” Id.

at 667.

In considering whether Willey received adequate due process, the district

court noted that in New York an inmate has the right to “ ‘be present at the

hearing unless he refuses to attend, or is excluded for reason of institutional

safety or correctional goals.’ ” Id. (quoting N.Y. Comp. Codes R. & Regs., tit. 7,

§ 254.6(a)(2)). Accordingly, “it was violative of Willey’s state regulatory rights to

be excluded” from the hearings from which he was ejected or of which he was not

informed. J.A. 669. But “a claim under state law does not necessarily provide a

viable due process claim under 42 U.S.C. § 1983.” Id. at 668. The district court27 stated that Willey’s “right to be personally present” at the hearing was not

guaranteed by the U.S. Constitution. Id. (citing Wolff v. McDonnell

, 418 U.S. 539

(1974)).

Our reading of Wolff does not comport with the conclusion that the

Constitution permits wholesale exclusion of an inmate from a disciplinary

hearing. The plaintiffs in Wolff brought a Fourteenth Amendment challenge to

Nebraska’s prisoner

‐ discipline process. The Supreme Court sought an

“accommodation between institutional needs and objectives and the provisions of

the Constitution that are of general application,” rejecting Nebraska’s argument

that “the interest of prisoners in disciplinary procedures is not included in that

‘liberty’ protected by the Fourteenth Amendment.” Wolff

, 418 U.S. at 556–57.

Accordingly, serious prison discipline like Willey’s punishment in solitary

confinement must meet “the minimum requirements of procedural due process

appropriate for the circumstances.” Id. at 558.

The Supreme Court elaborated that among those requirements are

“advance written notice of the claimed violation and a written statement of the

factfinders as to the evidence relied upon and the reasons for the disciplinary28 action taken.” Id. at 563. Additionally, “the inmate facing disciplinary proceedings

should be allowed to call witnesses and present documentary evidence in his

defense when permitting him to do so will not be unduly hazardous to

institutional safety or correctional goals.” Id. at 566. Yet the Court declined to

require the full panoply of procedural protections prescribed for parole

revocation by Morrissey v. Brewer

, 408 U.S. 471, 489 (1974). Specifically, Wolff

declined to extend to internal prisoner

‐ discipline hearings the rights of

“confrontation and cross

‐ examination[, which] present greater hazards to

institutional interests.”418 U.S. at 567. The Court was particularly sensitive to the

possible harm that could result from permitting cross

‐ examination of an inmate

‐

informant, acknowledging that the risks of cross

‐ examining guards “may be less.”

Id. at 568–69. The Court thus declined to require prisons to permit cross

‐

examination “at the present time,” leaving open the possibility that “[p]erhaps as

the problems of penal institutions change and correctional goals are reshaped, the

balance of interests involved will require otherwise.” Id. at 568.

Even assuming that the last forty years have not altered this balance to

require that an inmate has the right to cross

‐ examine guards who accuse that29 inmate of misconduct, we read Willey’s due

‐ process claim to concern those rights

that Wolff did establish. Indeed, Willey’s first administrative appeal prevailed

because Wende failed to afford him his right to “advance written notice of the

claimed violation,” id. at 563, and his complaint alleges, “I was never informed

that a hearing was taking place or ever asked if I wanted to attend,” J.A. 21.

Willey further alleges:

In this situation I was never given the opportunity to appear at the

tier hearing, or call witnesses, or present rebuttal evidence, nor was I

ever made aware that any hearing was being commenced. In

addition I was not given a written disposition by the fact finders as to

the evidence relied upon for their decision.

Id.

These alleged procedural infirmities are, if true, repugnant not only to New

York regulations but also to the Due Process Clause as construed by Wolff

. And

although not specifically mentioned in Wolff

, the threats of physical abuse or new

criminal charges allegedly made by hearing officers to Willey in an effort to

induce him to plead guilty, see id. at 22, are incompatible with any notion of due

process. Furthermore, Willey’s ejection from several hearings may be actionable

to the extent that it implicates his right to call witnesses and present evidence30 rather than any right to cross

‐ examination. The district court conflated these

distinct concepts in characterizing Willey’s complaint as alleging a violation of

“the right to be personally present.” Id. at 668. Nevertheless, we do not conclude

on this record that Willey’s procedural rights were infringed or address whether

the administrative appeals process with which he eventually found some success

adequately cured any infringements.

An error of omission also affected the district court’s grant of summary

judgment on Willey’s claim for retaliation. The district court acknowledged that a

false misbehavior report was actionable if done in retaliation for the exercise of a

constitutional right but concluded, without elaboration, that “Willey has not

alleged that the misbehavior reports were issued in retaliation for his exercise of a

constitutionally protected right.” Id. at 667. This analytical leap is somewhat

surprising in light of the previous district judge’s decision on the motion to

dismiss, which noted “that it is unclear whether there is a constitutional right ‘not

to snitch.’ ” Id. at 125 n.2. The previous district judge correctly noted that we have

previously left unresolved the question of whether such a right—the right to not

become an informant—exists. See Allah v. Juchnewioz

, No. 93

‐ cv

‐ 8813, 1999 WL31 562100, at *3 (S.D.N.Y. July 30, 1999) (holding that the plaintiff’s “claimed

conduct—his refusal to snitch when asked in the presence of other inmates—is

protected”), aff’d on other grounds sub nom. Allah v. Juchenwioz

, 176 F. App’x 187,

189 (2d Cir. 2006) (declining to reach question of whether “a prisoner enjoys a

constitutional right not to become an informant”).

Construing Willey’s complaint in its most favorable light, it alleges that the

first misbehavior report for possessing a weapon was issued to him in direct

retaliation for his refusal to provide false information to Roberts and Lambert

about an inmate whom Willey did not know. See J.A. 20. The only inference we

need draw to reach this conclusion is that Willey was telling the truth when he

said he knew nothing about the alleged smuggler of contraband and that the

officers pressed him to tell them what they wanted to hear notwithstanding

Willey’s actual lack of knowledge.

Was this refusal constitutionally protected? In the context of deciding

whether substantive due process protects a right that is deeply rooted in our

traditions, the Supreme Court has counseled that we should analyze “the most

specific level at which

. . . the asserted right can be identified,” Michael H. v. Gerald32 D.

, 491 U.S. 110, 127 n.6 (1989) (plurality opinion), and we have said that the “first

step

. . . is to identify the specific constitutional right allegedly infringed,” Pabon v.

Wright

, 459 F.3d 241, 252–53 (2d Cir. 2006) (quoting Albright v. Oliver

, 510 U.S. 266,

271 (1994)). Although the intransitive verb “to snitch” does not yet merit a

mention in Black’s Law Dictionary, we understand it to signify the act of

providing information to a person in authority about another’s wrongdoing.

“Snitching” carries a connotation, if not the denotation, of providing truthful

information that inculpates the wrongdoer. Accordingly, we think that “the right

not to snitch,” as the previous district court judge labeled it, perhaps

misconstrues—but certainly fails to identify at its most specific level—the right

Willey allegedly exercised in refusing to tell officers the lies he claims they

wanted to hear about his knowledge of a suspected smuggler’s activities.

On appeal, Willey urges that his “right to refuse to perjure himself or give

false information about another (and to testify truthfully, if he testified), is

constitutionally protected.” Appellants’ Br. 38. But it may be that the most specific

level at which to identify the putative right protecting Willey’s refusal is the right

of an inmate to refuse to provide false information to a corrections officer. Cf.33 Jackler v. Byrne

, 658 F.3d 225, 241 (2d Cir. 2011) (identifying as protected by the

First Amendment a citizen’s “right to reject governmental efforts to require him to

make statements he believes are false”). In any event, the existence of that specific

right is inadequately presented by the briefing, so we decline to resolve it.

Whether such a right exists under the First, Fifth, Eighth, or Fourteenth

Amendments, and whether it was not clearly established such that officers who

may have violated it should be entitled to qualified immunity, are questions we

leave to the district court to decide in the first instance.

III. Unsanitary Conditions of Confinement

Willey alleged three periods of confinement in unsanitary conditions: in

solitary confinement with a cell encapsulated by a Plexiglas cell shield; in a

mental

‐ health observation cell where he was left naked for two weeks in February

2006; and again in another observation cell from July 28 to August 24, 2006. The

district court discussed only the first of these in its decision granting summary

judgment. The district court found this allegation insufficient for three reasons: (1)

“Willey is vague as to the dates that the alleged shut

‐ off occurred, and has made

conflicting allegations about the duration,” from seven days to about seven34 weeks, (2) “Willey has not claimed that human waste from his toilet overflowed

into his cell,” and (3) “Willey has not claimed that he suffered sickness or other ill

effects as a result of the malodorous atmosphere caused by the water shut

‐ off.”

J.A. 675–76.

We reject this constrained conception of the Eighth Amendment’s

protections against unsanitary conditions of confinement. A brief tour of the

applicable case law, as ably canvassed by the district court, will aid our

discussion. The Eighth Amendment “does not mandate comfortable prisons,”

Rhodes v. Chapman

, 452 U.S. 337, 349 (1981), but prisons nevertheless “must

provide humane conditions of confinement,” Farmer v. Brennan

, 511 U.S. 825, 832

(1994). A claim under for violations of the Eighth Amendment requires (1) an

“objectively, sufficiently serious

. . . denial of the minimal civilized measure of

life’s necessities” and (2) a “sufficiently culpable state of mind” on the part of the

responsible official. Id. at 834 (internal quotation marks and citations omitted).

Our most recent opinion in this area is Gaston v. Coughlin

, 249 F.3d 156 (2d

Cir. 2001), which reinstated an inmate’s Eighth Amendment claim for exposure to

human waste. In that case, the plaintiff had alleged that “on several days the area35 directly in front of [his] cell was filled with human feces, urine, and sewage

water.” Id. at 161. The district court found that these conditions “were neither

severe nor protracted enough to rise to the level of an Eighth Amendment

violation,” but we reversed because we were “unwilling to adopt as a matter of

law the principle that it is not cruel and unusual punishment for prison officials

knowingly to allow an area to remain filled with sewage and excrement for days

on end.” Id. at 162, 166.

This sentiment was in keeping with our decision from a generation earlier,

LaReau v. MacDougall

, 473 F.2d 974 (2d Cir. 1974). There, an inmate spent five days

in a cell whose toilet was a grate

‐ covered hole in the floor, which could be flushed

only from outside the cell. “Causing a man to live, eat and perhaps sleep in close

confines with his own human waste is too debasing and degrading to be

permitted. The indecent conditions that existed in this

. . . cell seriously

threatened the physical and mental soundness of its unfortunate occupant.” Id. at

978. And even before LaReau

, we found an Eighth Amendment violation in part

because the cell in which the plaintiff was confined for a month was “fetid and

reeking from the stench of the bodily wastes of previous occupants which

. . .36 covered the floor, the sink, and the toilet.” Wright v. McMann

, 387 F.2d 519, 522

(2d Cir. 1967).

Our sister circuits are broadly in accord. See, e.g.

, McBride v. Deer

, 240 F.3d

1287, 1291 (10th Cir. 2001) (vacating in part dismissal where the plaintiff alleged

that he was forced to live “in squalor—more specifically, a feces

‐ covered cell—for

three days”); Sperow v. Melvin

, 182 F.3d 922, 1999 WL 450786, at *2 (7th Cir. June

24, 1999) (unpublished opinion) (reversing dismissal where inmate was

“subjected to appalling conditions for three full days” including feces and urine

on the walls and mattress); Young v. Quinlan

, 960 F.2d 351, 365 (3d Cir. 1992) (“It

would be an abomination of the Constitution to force a prisoner to live in his own

excrement for four days in a stench that not even a fellow prisoner could stand.”),

superseded on other grounds by Pub. L. No. 104

‐ 134, 100 Stat. 1321 (1996); McCord v.

Maggio

, 927 F.2d 844, 846–47 (5th Cir. 1991) (holding that an inmate’s sleeping for

two years on the floors of “roach

‐ infested, windowless, unlighted cells[,] into

which rain water and backed

‐ up sewage leaked” on occasion, established

unsanitary

‐ conditions claim); Williams v. Adams

, 935 F.2d 960, 961–62 (8th Cir.

1991) (reversing summary judgment where verified complaint alleged that during37 13

‐ day period “the toilet in the cell did not work, and that it continually ran over

and leaked onto the cell floor and the floor stayed filthy with its waste” (internal

quotation marks and alterations omitted)). But see Smith v. Copeland

, 87 F.3d 265,

269 (8th Cir. 1996) (affirming summary judgment to defendants where plaintiff

alleged “an overflowed toilet in his cell for four days”).

From this body of case law, the district court discerned a circuit split

“[w]here an inmate’s exposure to waste lasts for three or four days.” J.A. 674

(internal quotation marks omitted). Although locating this durational divide

around three or four days’ exposure to human waste, the district court38 nevertheless found that Willey’s complaint, which alleged, at a minimum, 2 seven

days’ exposure, failed to state a claim. We disagree.

Indeed, we find erroneous each of the three apparently independent

grounds given by the district court for dismissing Willey’s claim for unsanitary

conditions of confinement. The first two aim to set a minimum duration and

minimum severity of an exposure for it to reach the level of a constitutional

violation. We agree that there are many exposures of inmates to unsanitary

conditions that do not amount to a constitutional violation, but we reject the

district court’s conclusion that there is any bright

‐ line durational requirement for

2 The parties dispute whether Willey should be held to a particular sentence

in his original complaint summarizing his claims against Allessandro, who

“purposefully shut plaintiff’s toilet water and drinking water off for extensive

lengths of time, and plaintiff’s toilet water was turned off for a period of seven (7)

days, forcing plaintiff to stay in a cell with a Plexiglas shield (no air circulation)

and breathe in air smelling of urine/feces from a non

‐ flushable toilet in direct

violation of the 8th Amendment of the United States Constitution.” Compl. ¶ 87,

J.A. 34. This sentence was omitted from Willey’s hand

‐ written amended

complaint, which was otherwise substantively identical. See Am. Compl. ¶ 87, J.A.

171. Even if the operative pleading were not the amended complaint or Willey

were held to the omitted sentence alleging only seven days’ exposure, we would

still find that he stated a claim for which relief can be granted. Accordingly, we

need not reach this issue. Willey’s recovery on this claim at trial, if any, will be

bound by the admissible evidence he adduces showing his exposure to

unsanitary conditions, whether for seven days, seven weeks, or otherwise.39 a viable unsanitary

‐ conditions claim. Nor is there some minimal level of

grotesquerie required, which goes unmet by an inmate’s accumulating human

waste that fills a toilet but does not “overflow[] into his cell.” Id. at 675.

Instead, our decisions and those of other circuits evaluate the product of

these two components—whether exposure to human waste is cruel and unusual

depends on both the duration and the severity of the exposure. Where, for

example, an exposure to human waste lasts merely ten minutes, but that exposure

takes the form of working in a well while facing “a shower of human excrement

without protective clothing and equipment,” a jury may find an Eighth

Amendment violation. See Fruit v. Norris

, 905 F.2d 1147, 1151 (8th Cir. 1990).

Spending three days in that well was not required to state a claim. Likewise, a less

severe exposure may be constitutionally permissible if rectified in short order but

may become cruel and unusual with the prolonged passage of time. See McCord

,

927 F.2d at 846–47 (holding that occasional sewage backup onto cell floor on

which inmate slept over two

‐ year period, among other conditions, violated

Eighth Amendment).40 The severity of an exposure may be less quantifiable than its duration, but

its qualitative offense to a prisoner’s dignity should be given due consideration.

Here, the district court’s analysis did not appear to consider the effect that the cell

shields would have in exponentially amplifying the grotesquerie of the odor of

the accumulating waste. Another relevant consideration increases the severity of

Willey’s second alleged exposure, which the district court did not discuss. Over

those fourteen days in a filthy cell, Willey alleges that he was kept naked and

without access to clothing. We do not mean to set out any precise formula—we

do not say, for example, that this 14

‐ day exposure without clothing was more or

less grave than the later 28

‐ day exposure with clothing—but any analysis must

consider both the duration and the severity of an inmate’s experience of being

exposed to unsanitary conditions.

Finally, the district court’s imposition of a third requirement—that an

inmate “claim[] that he suffered sickness or other ill effects” to establish a

violation, J.A. 676—fares no better. Although the seriousness of the harms

suffered is relevant to calculating damages and may shed light on the severity of

an exposure, serious injury is unequivocally not a necessary element of an Eighth41 Amendment claim. See Hudson v. McMillian

, 503 U.S. 1, 4 (1992). Even if such

harm were required, Willey plainly alleged that his mental

‐ health problems and

attempted suicide followed the campaign of retaliation of which the unsanitary

conditions of his confinement were a prominent part.

For these reasons, independent of the reaching of grounds not raised by the

movants without notice and an opportunity to respond, we vacate the dismissal

of Willey’s claim for unsanitary conditions of confinement.

IV. Additional Claims Reinstated

A. Nutritionally Inadequate Food

The Eighth Amendment requires “nutritionally adequate food that is

prepared and served under conditions which do not present an immediate

danger to the health and well being of the inmates who consume it.” Robles v.

Coughlin

, 725 F.2d 12, 15 (2d Cir. 1983) (per curiam) (internal quotation marks

omitted). The district court acknowledged that Willey’s complaint alleges that

“the bread was usually stale and the cabbage usually rotten.” J.A. 676.

Accordingly, notwithstanding that “[c]ourts in this Circuit routinely have

dismissed” inadequate

‐ nutrition claims, id. at 677, Willey’s claim is not that all42 restricted diets are unconstitutional, but that the particular food he received was.

Especially in light of the liberality courts must show to pro se pleadings, we find

that Willey adequately pleaded this claim by alleging that his restricted diet was

unusually unhealthy.

B. Theft of Legal Documents

As with the claim for unsanitary conditions, we have already explained

that we must revive Willey’s claim for theft of legal documents because the

district court dismissed it on grounds not raised in the defendants’ motion. We

write further to clarify how to consider this claim on remand. The district court

dismissed this claim “because New York state law provides him with an adequate

post

‐ deprivation remedy, i.e., § 9 of the Court of Claims Act.” Id. at 669–70. In

support of this conclusion, the district court cited the Supreme Court’s holding

that “even the intentional destruction of an inmate’s property by a prison officer

does not violate the Due Process Clause if the state provides that inmate with an

adequate post

‐ deprivation remedy.” Id. at 669 (citing Hudson v. Palmer

, 468 U.S.

517, 536 (1984)).43 If Willey’s claim were for the destruction of his television or jewelry, this

analysis would suffice. But nowhere does the district court distinguish between

replaceable consumer goods and possibly irreplaceable legal documents. Legal

documents have characteristics that differentiate them from mere “property”

whose destruction can be adequately remedied by a generic property

‐ deprivation

state law. Their theft or destruction, for example, may irrevocably hinder a

prisoner’s efforts to vindicate legal rights. On remand, the district court should

consider this claim as one for impeding access to the courts:

It is now established beyond doubt that prisoners have a

constitutional right of access to the courts. This Court recognized

that right more than 35 years ago when it struck down a regulation

prohibiting state prisoners from filing petitions for habeas corpus

unless they were found “ ‘properly drawn’ ” by the “ ‘legal

investigator’ ” for the parole board. We held this violated the

principle that “the state and its officers may not abridge or impair

petitioner’s right to apply to a federal court for a writ of habeas

corpus.”

Bounds v. Smith

, 430 U.S. 817, 821–22 (1977) (citations omitted).

C. Harassment

We also vacate the dismissal of Willey’s claim for harassment, again

because the defendants did not mention it in their motion for summary judgment.44 See J.A. 626–30. On remand, the district court has an opportunity to analyze this

claim afresh under our recent decision in this area. See Crawford v. Cuomo

, No. 14

‐

969, 2015 WL 4728170, at *2–6 (2d Cir. Aug. 11, 2015). Crawford gives new

guidance on the meaning of Boddie v. Schnieder

, 105 F.3d 857, 861 (2d Cir. 1997),

our Circuit’s leading Eighth Amendment case on harassment and abuse that

leaves no physical injury. The district court may also consider whether Willey’s

psychological pain and resulting suicide attempt constitute an “appreciable

injury” that makes actionable the various forms of harassment Willey allegedly

suffered. See Purcell v. Coughlin

, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam).

D. Malicious Prosecution and False Imprisonment

Willey’s claims for malicious prosecution and false imprisonment went

unmentioned in the district court’s decision, in the defendants’ motion for

summary judgment, and in the briefing on appeal. 3 Willey’s complaint featured

some of the ambiguities and inartful allegations typical of a pro se filing, which

3 Waiver is an equitable doctrine, and we find more equitable the

reinstatement of these claims than the act of attributing to Willey’s appointed pro

bono appellate counsel the knowing and voluntary relinquishment of them in

light of their going unmentioned in the district court’s decision.45 we must liberally construe. But we have no trouble concluding that his complaint

stated, at a minimum, pendent state

‐ law claims for both malicious prosecution

and false imprisonment.

Willey even emphatically underlined his malicious

‐ prosecution claim in his

amended complaint: “Plaintiff was threatened and maliciously prosecuted with

false charges and outside criminal charges of allegedly possessing contraband in

the form of a weapon because plaintiff refused to act as an informant for security

staff.” J.A. 170 (emphasis in original). The elements of a claim for malicious

prosecution in New York are: “ ‘(1) the initiation or continuation of a criminal

proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor;

(3) lack of probable cause for commencing the proceeding; and (4) actual malice

as a motivation for defendant’s actions.’ ” Manganiello v. City of New York

, 612 F.3d

149, 161 (2d Cir. 2010) (quoting Murphy v. Lynn

, 118 F.3d 938, 947 (2d Cir. 1997)).

To make out a federal claim under 42 U.S.C. § 1983 in addition to a state

‐ law

claim, “a plaintiff must show a violation of his rights under the Fourth

Amendment and must establish the elements of a malicious prosecution claim

under state law.” Id. at 160–61 (citations omitted).46 Willey alleged these elements. First, a prosecution was initiated against

Willey in Alden Town Court for his alleged possession of a shank while

incarcerated at Wende, the same conduct for which he was initially sentenced to

solitary confinement. Second, those charges were dismissed. Third, Willey’s

allegation is that Taylor and Lambert fabricated the allegation as retaliation for

his refusal to provide false information to corrections officers, so he plainly

pleaded lack of probable cause. Fourth, also because he alleges the prosecution

was initiated in retaliation, Willey sufficiently alleges actual malice. We cannot

say from the record or briefing whether the prosecution caused a violation of

Willey’s Fourth Amendment rights so as to permit a claim under § 1983.

Likewise, Willey’s complaint alleges the elements of a claim for false

imprisonment within solitary confinement. This claim, too, he did not hide: “I

was in fact falsely imprisoned.” J.A. 20. In New York, “[t]o establish this cause of

action the plaintiff must show that: (1) the defendant intended to confine him, (2)

the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to

the confinement and (4) the confinement was not otherwise privileged.”

Broughton v. State of New York

, 37 N.Y.2d 451, 456 (1975). To succeed on the fourth47 element, a plaintiff complaining of false imprisonment within solitary

confinement must have “sufficiently pleaded that he had been subjected to

punitive segregation for no legitimate reason and without the rudimentary

protections of due process.” Gittens v. State of New York

, 504 N.Y.S.2d 969, 972

(N.Y. Ct. Cl. 1986). Willey alleged, first for his punitive segregation in solitary and

then for the more

‐ punitive segregation behind cell shields, that the confinement

was intentional, that he was conscious of it, that he did not consent to it, and that

it was not privileged because it was done for an illegitimate reason and without

due process. As with the malicious

‐ prosecution claim, it is unclear on this record

whether Willey stated a federal claim in addition to a state

‐ law claim for false

imprisonment.

IV. Further Proceedings

The district court (Siragusa, J. ) denied Willey’s first motion for appointment

of counsel, invoking the balancing test used in our Circuit. See J.A. 654–55 (citing

Hendricks v. Coughlin

, 114 F.3d 390, 392 (2d Cir. 1997)). Later, the district court

(Telesca, J. ) denied as moot Willey’s reasserted motion for appointment of counsel

in the same decision granting summary judgment to the defendants. Willey’s able48 pro bono appellate counsel did not request that Willey be appointed counsel on

remand or raise an argument concerning the decision denying as moot Willey’s

reasserted motion. But we encourage the district court, on remand, to seriously

consider affording Willey appointed counsel: Not only do Willey’s claims “seem[]

likely to be of substance,” but each of the other relevant factors may support such

an appointment. See Hodge v. Police Officers

, 802 F.2d 58, 61–62 (2d Cir. 1986)

(listing other factors including “indigent’s ability to investigate the crucial facts,

whether conflicting evidence implicating the need for cross

‐ examination will be

the major proof presented to the fact finder, the indigent’s ability to present the

case, the complexity of the legal issues and any special reason in that case why

appointment of counsel would be more likely to lead to a just determination”).

Moreover, we suggest that the district court consider whether to permit the

parties, on remand, to take further discovery about Willey’s claims and that

Willey receive leave to file a second amended complaint. The district court

(Siragusa, J. ) referred management of discovery to a magistrate judge, but none of

the defendants was deposed and no evidence produced by discovery was

submitted in connection with the motion for summary judgment.49 Should Willey be appointed counsel and permitted to take discovery, the

district court may well winnow several of his claims before trial. For example, we

earlier identified claims for which these defendants may be entitled to qualified

immunity. As another example, Willey’s complaint does not name the officers

responsible for the unsanitary conditions of his confinement in his second and

third alleged exposures, in the mental

‐ health observation units. Willey may yet be

able to name them in a second amended complaint, but if not, those incidents do

not deserve a jury’s attention. We show a “special solicitude,” Graham v. Lewinski

,

848 F.2d 342, 344 (2d Cir. 1988), toward Willey as a pro se litigant by keeping

alive, for now, these claims for unsanitary conditions of confinement, which we

would dismiss in a counseled complaint for failing to identify the responsible

officers who acted with the requisite culpability. But of course we leave

management of discovery and trial to the sound discretion of the district court.

For all these reasons, we VACATE the judgment of the district court and

REMAND for further proceedings consistent with this opinion.