cognizable constitutional rights makes conspiracy to violate
those rights a legal impossibility. As discussed, Romer fails to
allege deprivation of a constitutional right in his contentions
regarding either defendants' denial of his work release
applications or in their publication of information about his
conviction, and he has set forth no other violation of a
constitutional right underlying his claim.
Even assuming for the purpose of this motion that Romer passed
the constitutional violation prerequisite, he still cannot
satisfy the conspiracy prong because his claims are too general
and conclusory to sufficiently plead the meeting of the minds
requirement. See Dwares, 985 F.2d at 99-100 (2d Cir. 1993)
(finding that a § 1983 conspiracy claim must contain more than
mere conclusory allegations); Simms v. De Paolis, No. 99 Civ.
2776, 2000 WL 1134564,* 5 (S.D.N.Y. Aug. 9, 2000) (same). Romer
repeatedly alleges that Mauskopf's actions took place under
direction of Morgenthau, and that DOCS Defendants' actions were
carried out both at the "behest" and "urged and influenced" by DA
Defendants. See, e.g., Compl. ¶¶ 31, 41-42, 77. Romer's
conspiracy allegations cannot be sustained as sufficiently
specific merely by his stating the means by which defendants may
have communicated with one another over the years of his
incarceration. While Romer has cited defendants' furtherance of
their alleged conspiracy through practically every conceivable
means of communication, this recitation suggests nothing
supporting an inference that any of this alleged communication
was centered on, or led to a meeting of the minds among
defendants about denying Romer a cognizable constitutional right.
Absent allegations of facts leading to a reasonable inference
that defendants conspirationally conferred with a purpose of
actually depriving Romer of any recognized constitutional right,
he cannot state a sustainable conspiracy claim.
Romer's conspiracy count is dismissible under either theory.
But, on the basis of the above finding that Romer had failed to
allege sufficiently the deprivation of a constitutional right,
rendering impossible any recovery on such a claim, the Court
dismisses the claim without leave to replead.
G. Intentional Infliction of Emotional Distress
Under the Prisoner Litigation Reform Act ("PLRA"), a confined
prisoner claiming intentional infliction of emotional distress
must have suffered actual physical injury as a result of
defendants' actions; although the injury need not be significant
it must be more than de minimis. 42 U.S.C. § 1997e(e); see
also Wright v. Miller, 973 F. Supp. 390, 396 (S.D.N.Y. 1997);
Geller, 717 F. Supp. 213 (finding allegations of hypertension as
presenting a factual issue as to whether a significant physical
injury was alleged). New York State law requires intentional
infliction of emotional distress for "extreme and outrageous
conduct intentionally or recklessly caus[ing] severe emotional
distress to another . . . [The] conduct [must be] outrageous in
character and so extreme in degree as to go beyond all possible
bounds of decency." Murphy v. American Home Products Corp.,
58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86, 90 (1983).
Romer's intentional infliction of emotional distress claim,
however, is brought, not under New York law, but as a violation
of his federal due process rights. He neither alleges a violation
of state law nor asks that the Court exercise supplemental
jurisdiction, instead stating specifically that the charge is
brought as a constitutional violation. This claim is untenable.
While § 1983 is applicable to already-existing federal civil
rights, it does not create new substantive rights, see Baker v.
McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433
(1979), or make a state tort actionable as a federal crime or
constitutional deprivation just because it is committed by a
See Paul v. Davis, 424 U.S. 693, 700, 96 S.Ct. 1155, 47 L.Ed.2d
405 (1976) (declaring that even if "a prisoner is assaulted,
injured or even murdered by state officials[, it] does not
necessarily mean that federal rights have been invaded"). Even
assuming the proposition, which defendants contest, that an
aggravation of a prisoner's hypertension can constitute
sufficient physical injury, and that Romer's allegation that
defendants' extreme and unjustified conduct caused him physical
and emotional distress would suffice to plead a tort claim under
state law, this Court concludes that such a claim is not
actionable as a constitutional violation under § 1983.
Accordingly, this claim is dismissed.
H. Equal Protection
Romer also reads into his complaint an equal protection claim,
which requires "intentional or purposeful discrimination."
Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497
(1944). He asserts in his Memorandum of Law that the complaint
states a claim for differential treatment inconsistent with his
safety and welfare.*fn6 See Dugar v. Coughlin, 613 F. Supp. 849,
856-57 (S.D.N.Y. 1985). Romer could state an equal
protection claim as a "class of one" by alleging that he "has
been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference
in treatment." Village of Willowbrook v. Olech, 528 U.S. 1073,
120 S.Ct. 1073, 1074, 145 L.Ed.2d 1060 (2000). However, this
Court believes that Judge Pauley's finding that only a due
process violation is alleged in the complaint is both the law of
the case and correct. The complaint mentions "equal protection"
numerous times, but clearly states that the claim is for
violation of Romer's due process rights under the Fourteenth
Amendment. The complaint does not give adequate notice to the
defendants or the Court that a separate equal protection cause of
action is being asserted, and thus this claim must be dismissed.
Additionally, the Court notes that even if an equal protection
argument could be reasonably inferred as a separate action from a
fair reading of Romer's complaint, the allegations would be
insufficient to state a valid claim. Defendants point out that to
the extent Romer advances an equal protection theory, he asserts
differential treatment in reference to only one specific inmate
in federal, rather than state, custody. According to Romer,
despite this federal inmate's having committed more serious
crimes, he received a less severe sentence and was imprisoned
under more accommodating conditions than Romer. Beyond this
example, the complaint does not particularize in what specific
ways and in relation to which similarly situated state inmates
defendants allegedly treated Romer differently without a rational
basis for the difference. The Court agrees that the one
comparison Romer details does not form a sufficient basis
justifying an equal protection claim. For this reason, Romer's
equal protection violation theory also would be insufficient.
For the reasons set forth in the preceding decision, it is
ORDERED defendants' motion to dismiss the complaint for
failure to state a claim is granted, and it is further
ORDERED, that the clerk of the Court is directed to enter
judgment dismissing the complaint herein with prejudice.