The opinion of the court was delivered by: Marrero, District Judge.
Plaintiff Joshua Liner ("Liner"), proceeding pro se, brings
this action under 42 U.S.C. § 1983 claiming violations of
various constitutional rights. The Commissioner of the New York
Department of Corrections and other state correctional officers
and officials (collectively, "Defendants"), have moved to
dismiss the complaint for Liner's failure to exhaust
administrative remedies, pursuant to 42 U.S.C. § 1997e(a) of the
Prison Litigation Reform Act, and for failure to state a claim,
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
reasons set forth below, the Court grants the motion in its
The present action "is [at least] the fifteenth suit filed by
Liner in this Court, five of which were dismissed sua sponte
pursuant to 28 U.S.C. § 1915." Order of Judge Alvin K.
Hellerstein, dated March 30, 1999 ("Order"), at 2.
Liner presently alleges that he was forced to endure "top bunk
status" even though he had "excessive back pain." Amended Compl.
at 2, 3.*fn1 Liner claims that he was issued one of three
misbehavior reports in connection with bunking on June 18, 1997
while incarcerated at Woodbourne Correctional Facility and that
a disciplinary hearing was held in connection with the report.
Liner claims that Officer Jones, the hearing officer and a
defendant in this action, without reviewing a complete set of
Liner's medical records or listening to individuals whose
testimony Liner wished to present, determined during the hearing
that Liner was eligible for a top bunk and then "sentenced
[Liner] to cell key-lock for thirty days." Amended Compl. at 3.
Liner claims that additional misbehavior reports were issued on
July 21 and September 8, 1997; that he was not permitted to call
certain witnesses during a hearing held in connection with the
second report; and that he was placed in "key lock status" as a
result of both reports. Amended Compl. at 5.
Liner further alleges that defendants Jones, Williams and
Keane, conspired to tamper with his medical records; that
Williams never gathered all of his medical records; and that
Superintendent Keane, knowing that Liner's rights had been
violated, dismissed his three appeals.
Liner later filed his Amended Complaint, and Defendants filed
the instant motion to dismiss before Judge Hellerstein. This
Court conducted a conference with the parties shortly after the
case had been reassigned to its docket. Liner, by then having
been released from prison, attended the conference in person.
In considering a Rule 12(b)(6) motion, the Court must accept
Liner's factual allegations as true and draw all reasonable
inferences in his favor. See Hamilton Chapter of Alpha Delta
Phi, Inc. v. Hamilton College, 128 F.3d 59 (2d Cir. 1997). It
is the Court's task to assess the legal sufficiency of the
complaint and not to judge the credibility of the pleadings or
to assess the weight of any evidence offered in support of the
action. See Cooper v. Parsky, 140 F.3d 433 (2d Cir. 1998). A
claim may not be dismissed "unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Morris v. Local 819, Int'l
Bhd. of Teamsters, 169 F.3d 782, 784 (2d Cir. 1999) (quoting
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,
2 L.Ed.2d 80 (1957)).
II. GROUNDS FOR DISMISSAL
1. Failure to Replead Properly
The Court finds that the allegations of the Amended Complaint
are virtually identical in substance to those from Liner's
initial filing dismissed by Judge Hellerstein, and that this
pleading, as amended, continues to lack the requisite
specificity and basis in fact. See discussion, infra. When a
plaintiff does not correct the defects in an initial pleading
through the filing of a more detailed amended complaint, the
amended complaint may be dismissed with prejudice. See Denny v.
Barber, 576 F.2d 465, 471 (2d Cir. 1978); Coakley v. Jaffe,
49 F. Supp.2d 615, 629 n. 14 (S.D.N.Y. 1999); O'Brien v. Price
Waterhouse, 740 F. Supp. 276, 284 (S.D.N.Y. 1990), aff'd,
936 F.2d 674, 676 (2nd Cir. 1991); Ross v. Bolton, No. 83 Civ.
8244, 1989 WL 80425 (S.D.N.Y. Apr. 10, 1989), aff'd,
904 F.2d 819, 824 (2d Cir. 1990). While dismissal on this ground would ...