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September 25, 1995


The opinion of the court was delivered by: HECKMAN


 This matter was referred to the undersigned by the Hon. William M. Skretny, for pretrial matters and to hear and report on dispositive motions, in accordance with 28 U.S.C. § 636(b). Defendants Hakes and Kelly have filed a motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint against them for failure to state a claim upon which relief can be granted (Item 14). Defendant Schiefer has filed a motion pursuant to Fed.R.Civ.P. 15(a) for leave to amend his answer (Item 24). *fn1"

 For the reasons that follow, it is recommended that defendant Hakes' motion to dismiss be granted, and that defendant Kelly's motion to dismiss be denied. Defendant Schiefer's motion for leave to amend his answer is granted.


 As set forth in the district court's decision and order dated June 3, 1994 (Item 4), plaintiff filed this action pro se seeking relief under 42 U.S.C. §§ 1983 and 1985 against defendants Hakes and Kelly, along with a request to proceed in forma pauperis under 28 U.S.C. § 1915. Before the court ruled on the in forma pauperis application, plaintiff filed an "amended complaint" adding defendants Cunningham, Cartwright and Schiefer to this action. The court treated the amendment as a supplemental pleading under Fed.R.Civ.P. 15(d), and fully considered the allegations therein.

 Plaintiff alleged in his original complaint that defendant Hakes, a Department of Correctional Services ("DOCS") counselor at the Attica Correctional Facility, used racial epithets towards plaintiff, refused his request for program assignment, and retaliated against him for filing a grievance. He also claimed that defendant Kelly, the Superintendent of the Attica facility, was informed about Hakes' conduct through the inmate grievance procedure but refused to take action. In his supplemental complaint, plaintiff alleged that on March 10, 1994, Corrections Officer Cheney sexually assaulted and molested him during a "pat frisk." He further alleged that his cell was "trashed" as a result of a conspiracy involving Sergeant Cunningham and Superintendent Kelly in retaliation for his filing of a grievance against Officer Cartwright, that personal property (including legal and religious material) was wrongfully confiscated, and that Officer Schiefer conspired to deprive him of access to the courts.

 In its June 3, 1994 decision and order, the district court dismissed as frivolous plaintiff's claims against defendants Hakes and Kelly relating to Hakes' allegedly racist statements and alleged refusal of requested program assignment. The court also dismissed plaintiff's claims against defendant Cartwright for failure to allege personal involvement in the alleged constitutional deprivations, and dismissed plaintiff's due process claims relating to the search of his cell and confiscation of his legal materials. Finally, the court granted plaintiff leave to amend his complaint "in order to plead more fully his claim of interference with and retaliation for exercising his right to petition for redress of grievances, and his claim of sexual assault" (Item 4, p. 8).

 On July 20, 1994, plaintiff filed an amended complaint (Item 5) in which he alleges that he filed a grievance against defendant Hakes based on her denial of employment and failure to provide counseling services pursuant to DOCS directives. Upon unsuccessful appeal from the denial of the grievance, plaintiff filed an Article 78 action in New York State Supreme Court. He alleges that he requested a copy of a document from his file "for use to answer the petition before the court," but that Hakes "refused to provide this essential information about the grievance" (Item 5, p. 4). Plaintiff then filed another grievance against defendant Hakes, as well as a complaint with the New York State Ethics Commission.

 As to the claims against Superintendent Kelly, plaintiff alleges that Kelly was aware of the conduct of Hakes due to the prison grievance procedure, but failed to correct the alleged misconduct. He also alleges that Kelly was aware of the alleged "sexually assaultive and molestative treatment" he received in March, 1994, but failed to correct it. Finally, he alleges that Kelly assigned defendant Cunningham to investigate the grievance plaintiff filed against officer Cartwright, despite a known conflict of interest and despite plaintiff's express request not to do so. *fn2"

 Defendants Hakes and Kelly move to dismiss the amended complaint for failure to state claims against them upon which relief can be granted, and defendant Schiefer moves to amend his answer in order to add defenses to plaintiff's state law claims against him. These motions will be addressed in turn.


 I. Motion to Dismiss.

 In determining a motion to dismiss under Rule 12(b)(6), the court must presume all factual allegations of the complaint to be true and make all reasonable inferences in favor of the non-moving party. 2A Moore's Federal Practice P 12.07[2-5], p. 12-63 (1992); Miree v. DeKalb Co., Georgia, 433 U.S. 25, 27 n.2 (1977). However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness. 2A Moore's, supra, at pp. 12-63 through 12-64; Albany Welfare Rights Organization Day Care Center, Inc. v. Schreck, 463 F.2d 620 (2d Cir. 1972), cert. denied, 410 U.S. 944, 35 L. Ed. 2d 611, 93 S. Ct. 1393 (1973). The complaint should not be dismissed for failure to state a claim unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)(quoted in Cortec Industries, Inc. v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir. 1991)).

 A. Corrections Counselor Hakes.

 Defendant Hakes asserts that the amended complaint fails to allege a cognizable § 1983 claim against her. I agree. To the extent plaintiff realleges his § 1983 claim based on the denial of a particular program assignment, that claim should be dismissed for the same reasons as set forth in the district court's June 3, 1994 decision and order. See Item 4, pp. 4-5 (citing Moody v. Daggett, 429 U.S. 78, 88, 50 L. Ed. 2d 236, 97 S. Ct. 274 (1976)(prison inmates do not have federally guaranteed right to participate in institutional ...

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