2. Pleading Standards for Claims of Retaliation
Under Rule 8(a) of the Federal Rules of Civil Procedure, a complaint usually requires a "short and plain" statement of the claim. However, in the Second Circuit claims of retaliation must be pled with greater detail. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). This heightened pleading standard is necessary because retaliation claims are "prone to abuse," in that prisoners could make claims of retaliation for every administrative decision with which they did not agree. Id. If courts allowed full discovery for every claim of retaliation, the results would be chaotic. See id. Yet, some inmates do have legitimate § 1983 claims which should be heard on the merits. See id. Therefore, if a complaint creates a "colorable suspicion" of retaliation, a court should allow some discovery before determining whether a valid claim exists. See id.; Maurer v. Keane, 1996 U.S. Dist. LEXIS 18830 at *8, 1996 WL 732591, at *2 (S.D.N.Y. Dec. 19, 1996). On the other hand, a court should dismiss a complaint if the allegations of retaliatory conduct are "unsupported, speculative, and conclusory." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997); see also Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (affirming grant of 12(b)(6) motion because allegations of retaliation were conclusory); Smith v. O'Connor, 901 F. Supp. 644, 649 (S.D.N.Y. 1995) (granting motion to dismiss when an inmate alleged that the defendant had retaliated against him because of "an undefined 'legal complaint' made to a superior officer at an unspecified time").
In the present case, plaintiff's claim of retaliation is "wholly conclusory." Plaintiff pleads with less detail than did the plaintiff in Smith. He identifies neither the officer to whom he made the alleged complaint nor the basis of the alleged complaint. He merely describes defendants' actions as "retaliatory conduct." Am. Compl. PP 4, 9, 11, 21. Indeed, in plaintiff's most detailed allegation of retaliation he claims that his confinement was "a result of retaliatory conduct for the plaintiff exercising his constitutional rights to complain of the conditions." Am. Compl. P 9. Because plaintiff has not alleged retaliatory conduct with the detail necessary for a claim of retaliation, the claim of retaliation must be dismissed. However, for the reasons stated below, plaintiff may be able to cure the defect in his complaint by amendment.
II. Leave to Amend
Rule 15(a) provides, in relevant part: "A party may amend the party's pleading once as a matter of course .... Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). "In the absence of any apparent or declared reason - such as ... futility of amendment, etc. - the leave sought should, as the rules require, be 'freely given.'" Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). A futile amendment is one that is clearly frivolous or advances a claim that is legally insufficient on its face, suggesting no colorable grounds for relief. To determine whether an amendment is futile, a court should perform a test comparable to that required by Rule 12(b)(6). See Foman, 371 U.S. at 182; Peirez, Ackerman & Levine v. Starr, 1994 U.S. Dist. LEXIS 1539 at *8, 1994 WL 48811, at *2 (S.D.N.Y. 1994). Only if it appears beyond doubt that the defect cannot be cured by the amendment should an amendment be deemed futile. See Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991).
When granting a motion to dismiss, courts ordinarily allow leave to replead. See id. at 48. Moreover, a pro se complaint should not be dismissed without leave to amend "when a liberal reading of the complaint gives any indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991); see also Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994) ("Sparse pleadings by pro se litigants unfamiliar with the requirements of the legal system may be sufficient at least to permit plaintiff to amend his complaint to state a cause of action."); Thompson v. Sullivan, 967 F.2d 404, *406, 1992 WL 42188, at *7 (S.D.N.Y. 1992) (granting leave to amend while granting a motion to dismiss, pursuant to Rule 12(b)(6)).
In the present case, plaintiff cannot allege any set of facts establishing a liberty interest protected by the Due Process Clause. Any attempt to amend the complaint would therefore be futile. Accordingly, leave to amend the complaint as to the due process claim is denied. Plaintiff may, however, be able to allege a set of facts establishing a retaliation claim. The Court's dismissal of plaintiff's retaliation claim is based solely on his failure to state the claim with sufficient detail. Given the wide latitude courts must afford pro se plaintiffs, if plaintiff does have a valid retaliation claim, he should be afforded an opportunity to test his claim on the merits. The mere fact that the original complaint and first amended complaints state the same general facts does not establish that a second amended complaint will not survive a 12(b)(6) test. Plaintiff, who may well be unaware of the heightened pleading standard applicable to retaliation claims, may be able to state a cause of action with the specificity required, and therefore, the Court is unable to conclude that an amendment to the complaint would be futile. Accordingly, the Court grants plaintiff leave to amend his retaliation claim.
For the reasons stated above, the due process claim is hereby DISMISSED WITH PREJUDICE, the retaliation claim is DISMISSED WITHOUT PREJUDICE, and leave to amend as to the retaliation claim is GRANTED. Plaintiff shall submit a proposed amended complaint on or before August 5, 1997.
New York, New York
June 24, 1997
Peter K. Leisure