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HUNT v. BUDD

July 31, 1995

JULIO HUNT, Plaintiff, against H. A. BUDD, et al., Deputy Superintendent of Security at Shawangunk Correctional Facility; Sergeant Farley; Sergeant Lay; CO Ricenberg, Defendants.


The opinion of the court was delivered by: THOMAS J. MCAVOY

 This matter was referred to Magistrate Judge David N. Hurd for a Report-Recommendation pursuant to a Standing Order dated August 2, 1985. The Magistrate Judge's Report-Recommendation recommends that Defendants' Motion to Dismiss be granted in part and denied in part. Plaintiff and Defendants filed timely objections to the Report-Recommendation.

 I. BACKGROUND

 A. Plaintiff's Complaint

 Plaintiff filed this pro se civil action pursuant to 42 U.S.C. § 1983 on June 6, 1994. First, Plaintiff asserts that Defendants conspired to inflict harm on him in an effort to racially discriminate. Second, Plaintiff contends that his Eighth Amendment right to be free from cruel and unusual punishment was violated when Defendant Ricenberg pat frisked him on three occasions and the supervisors named as Defendants failed to discipline Ricenberg after Plaintiff complained. Plaintiff seeks injunctive relief as well as compensatory and punitive damages. Presently before the Court is Defendants' Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b), for failure to state a claim upon which relief can be granted.

 B. Facts

 At all times relevant to this action, Plaintiff was an inmate at Shawangunk Correctional Facility ("Shawangunk"), a New York State prison, and Defendants were all corrections officers at Shawangunk. Plaintiff alleges that he was harassed, threatened and molested. Pl.'s Compl. at 2, P 2. He notes the dates of Defendant Ricenberg's alleged molestation and describes the alleged incidents with specificity:

 
I am being harassed, threatened and sexually molested by officers in Shawangunk Correctional Facility. I am also suffering from a developing pattern of racial discrimination being perpetrated by officers at the facility. On December 28, 1993, January 22, 1994, and February 8, 1994, I was pat frisked by c/o Ricenberg in the Times Square thoroughfare of the facility. On each occasion c/o Ricenberg has rubbed my penis and grabbed my testicles. He additionally takes the liberty of jamming his thumb in my anus and squeezing or patting my buttocks. Particularly on February 8, 1994 c/o Ricenberg squeezed my testicles so hard that I was out of breath.

 Pl.'s Compl. at 2, P 2. Plaintiff then refers to the supervisors' alleged knowledge of these violations and claims racial discrimination precipitated Defendants Ricenberg's actions and the supervisors' failure to discipline:

 
I have complained to Sergeant Farley, Sergeant Lay, and the Deputy Superintendent of Security H. A. Budd. All three (3) have refused to 1) accept my allegations as true, and 2) to reprimand this officer for this misconduct. The acts of c/o Ricenberg, and other non-party co-conspirators have resulted in unnecessary and restricted infliction of pain upon your plaintiff. These acts have no penological justification and were intended to chastise. They were also an invasion of privacy, unlawful search, cruel and unusual punishment; and since they were primarily motivated by race distinctions, a denial of equal protection. These acts violated the Plaintiff's IV, VIII, XIV Amendments of the U.S. Constitution.

 Pl.'s Compl. at 2, P 2.

 II. CONSPIRACY UNDER § 1983

 Defendants argue that Plaintiff's "conspiracy" claim and his allegation that racial discrimination prompted the conspiracy and misconduct are conclusory and unsupported, justifying dismissal. The Magistrate Judge agreed and so does this Court.

 The Second Circuit has repeatedly held that "complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (citations omitted). Plaintiff fails to proffer alleged facts pertaining to conspiracy and racial discrimination that would support the Fourteenth Amendment and conspiracy claims. Accordingly, the Court agrees with the Magistrate Judge and ...


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