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September 28, 2000


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 entirety.


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.

On October 28, 1998, Defendants filed their first motion to dismiss. Judge Hellerstein, to whom this case previously had been assigned, found that the "complaint . . . is almost impossible to understand;" "[t]he facts necessary to understand the allegations have not been pleaded;" and "the chief problem with the complaint is a failure to provide factual details where only general allegations of wrongdoing have been alleged." Order at 2-3. Accordingly, Judge Hellerstein granted the motion; permitted Liner to file an Amended Complaint; and offered suggestions as to how Liner could draft any amended pleading to correct the deficiencies noted.

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)).


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 ...

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