deprivation. It is unclear from defendants' papers whether they seek to dismiss plaintiff's claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or whether they are moving for summary judgment under Rule 56. At one point, defendants argue that "plaintiff's allegations fail to specify how the state defendants were personally involved in the alleged deprivation of [Davis] constitutional rights." (Defs.' Mem. at 10). Later, however, they assert that "plaintiff has provided no specific facts" to support his claim of personal involvement and that "summary judgment [should be granted] in their favor as there are no allegations or evidence . . ." to support the claim. (Id. at 11).
First, to the extent that the motion is construed to be a motion to dismiss pursuant to Rule 12(b)(6), this Court recommends that the motion be denied. In order to state a valid claim under Section 1983, the plaintiff must allege that the defendants, acting under color of state law, deprived the plaintiff of a right guaranteed by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Katz v. Klehammer, 902 F.2d 204, 206 (2d Cir. 1990) (citing Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); Peavey v. Polytechnic Institute, 775 F. Supp. 75, 77-78 (E.D.N.Y. 1991), aff'd, 969 F.2d 1042 (2d Cir.), cert. denied, 506 U.S. 922, 121 L. Ed. 2d 257, 113 S. Ct. 341 (1992). The law is clear that in a Section 1983 case, that there must be a showing that each of the defendants was personally involved in the alleged constitutional deprivation of plaintiff's rights. See, e.g., McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978); Mukmuk v. Commissioner of the Dep't of Correctional Servs., 529 F.2d 272, 276 n.5 (2d Cir.), cert. denied, 426 U.S. 911, 48 L. Ed. 2d 838, 96 S. Ct. 2238 (1976). Liability may not be premised on the doctrine of respondeat superior alone. See Al-Jundi v. Estate of Rockefeller, 885 F.2d at 1065. Thus, where the complaint fails to allege how the defendant violated the law, a motion to dismiss should be granted. See Morabito v. Blum, 528 F. Supp. 252, 262 (S.D.N.Y. 1981).
In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor. See Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836, 130 L. Ed. 2d 63, 115 S. Ct. 117 (1994); see also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993). "In determining the adequacy of a claim under Rule 12(b)(6), consideration is limited to the facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). The complaint may be dismissed only where "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).
However, it is well-settled that in order to survive a motion to dismiss, a civil rights complaint must contain "more than mere conclusory allegations." Salahuddin v. Cuomo, 861 F.2d 40, 43 (2d Cir. 1988) (citing Ostrer v. Aronwald, 567 F.2d 551 (2d Cir. 1977)); see also Neustein v. Orbach, 732 F. Supp. 333, 346 (E.D.N.Y. 1990) (holding that a complaint under Section 1983 must contain "more than naked improbable unsubstantiated assertions without any specifics"). It must, in fact, contain "specific allegations of fact which indicate a deprivation of constitutional rights." Neustein v. Orbach, 732 F. Supp. at 346 (citations and internal quotations omitted). While the allegations of the complaint are to be liberally construed in pro se civil rights cases, and a pro se plaintiff's complaint is generally held to "less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), complaints have been dismissed where the pro se litigant has asserted a claim without supporting facts. See, e.g., Thomas v. Beth Israel Hospital Inc., 710 F. Supp. 935, 942 (S.D.N.Y. 1989); Wade v. Carey, 503 F. Supp. 25, 26 (S.D.N.Y. 1980).
Mindful of the rule that the complaint of a pro se litigant should be liberally construed in his favor, see Haines v. Kerner, 404 U.S. at 520, plaintiff's complaint will be reviewed to determine whether the plaintiff has sufficiently stated a cause of action or, if given an opportunity to amend, plaintiff can plead a set of facts that would entitle him to relief against any of the named defendants.
A review of the complaint demonstrates that plaintiff's allegations against the named defendants, while less detailed as to some, satisfy the requirements for specificity when reviewing a pro se complaint under Rule 12(b)(6).
With respect to defendant Sharon Hom, plaintiff's complaint alleges that Hom interviewed the plaintiff in August 1985 when he appeared for admission and she informed him of her awareness of the lawsuit he had instituted on June 3, 1985 against CUNY. (Davis v. Halpern, 85 CV 2052). He further alleges that she was the deciding vote to deny admission to plaintiff for the September 1985 term of the Law School and that she was later added as a defendant in the Halpern case. Plaintiff further alleges, on information and belief, that defendant Hom was a member of the Academic Standing Committee at the time that it considered and denied both grade appeals relating to plaintiff's RIC I grade, and that she read the two articles published by plaintiff challenging the appeal process. He alleges that defendant Hom, along with defendants Goode, Cicero, Calvo, and Barnett-Carter then "conspired by having exparte [sic] documents submitted by Harring" regarding the second grade appeal and that she retaliated against the plaintiff for naming her as a defendant in Halpern and for writing the articles. (Compl. P 49).
With respect to defendants Cicero and Calvo, plaintiff's complaint alleges that they were also members of the Academic Standing Committee when the first grade appeal was voted on and rejected in May 1993. The complaint further alleges that they had received plaintiff's earlier March 4, 1993 letter, challenging the appeal and threatening "to turn to another forum" to get a fair hearing. (Compl. Ex. 9). The complaint further alleges that defendants Cicero and Calvo attended a meeting in March 1993 where plaintiff objected to the appeal process and that they read the two articles written by plaintiff in the student newspaper. In retaliation and "as a punishment" for expressing their views, plaintiff's complaint alleges that Cicero and Calvo received ex parte communications from Professor Harring and denied plaintiff's second grade appeal. (Compl. P 57).
With respect to defendant Sharon Barnett-Carter, the complaint alleges, upon information and belief, that she was also on the Committee, received plaintiff's March 4, 1993 letter, denied his first grade appeal, and read the two articles. She is also alleged to have received ex parte written communications from Professor Harring and voted against plaintiff's second grade appeal as retaliation.
With respect to defendants Joyce McConnel, Mary Lu Bilek, and Dave Fields, plaintiff's complaint alleges that they were all members of the Committee when the vote to deny plaintiff's grade appeal was taken on May 4, 1993; that they were aware of Professor Harring's alleged favoritism in raising the RIC I grades of certain students; and that they voted to deny plaintiff's "non-existent" grade appeal "to punish plaintiff from writing articles in the student newspapers challenging the unconstitutional grade appeals process in effect at the law school." (Compl. P 69).
Construing the allegations in the light most favorable to plaintiff, as this Court must on a motion to dismiss, this Court finds that plaintiff's pro se complaint sufficiently alleges facts necessary to state a claim against each of the named individual defendants. Accordingly, it is respectfully recommended that defendants' motion to dismiss the claims against defendants Hom, Cicero, Calvo, Barnett-Carter, McConnel, Bilek, and Fields be denied.
Moreover, if defendants' motion is construed to be a motion for summary judgment under Rule 56, defendants have failed to carry their burden of presenting affidavits or other evidence to support their claim that no material issues of fact exist as to the personal involvement of these individual defendants. Accordingly, to the extent this is intended to be a motion for summary judgment, it is respectfully recommended that the motion be denied.
Even if defendants' papers were considered sufficient to support a motion for summary judgment, plaintiff argues that in order to respond to defendants' motion for summary judgment, he needs certain additional discovery, specifically answers to interrogatories.
Rule 56(f) of the Federal Rules of Civil procedure provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.