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GRAHAM v. PEREZ

November 6, 2000

RICHARD GRAHAM, JOSE R. FIGUEROA, WILLIAM KANELOS, AND PROTECTIVE CUSTODY STATUS INMATES, NAMED AND UNNAMED, HOUSED IN FISHKILL CORRECTIONAL FACILITY, SPECIAL HOUSING UNITS OF O, P AND Q GALLERIES, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
V.
ADA PEREZ, DEPUTY SUPERINTENDENT OF PROGRAMS, WILLIAM MAZZUCA, ACTING SUPERINTENDENT, GLENN S. GOORD, COMMISSIONER, DONALD SELSKY, DIRECTOR OF SPECIAL HOUSING, AND ALL UNNAMED PERSONS, SERGEANTS, LIEUTENANTS, CAPTAINS, AND PRISON GUARDS WORKING O, P AND Q GALLERIES OF SPECIAL HOUSING UNITS AT FISHKILL CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge.

  OPINION AND ORDER

Pro se plaintiff Richard Graham, along with two other inmates, Jose Figueroa and William Kanelos, bring suit under 42 U.S.C. § 1983 and 1997 both individually and on behalf of all others similarly situated against officials and employees of the New York State Department of Correctional Services ("DOCS") at Fishkill Correctional Facility ("Fishkill") ("defendants"). The Complaint alleges that conditions for protective custody status inmates in the O, P and Q galleries of the Special Housing Unit ("SHU") at Fishkill violate plaintiffs' constitutional rights. The Complaint seeks both monetary damages and injunctive relief.

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendants now move to dismiss the Complaint for failure to state a claim upon which relief can be granted. For the reasons stated below, defendants' motion to dismiss is granted, with leave to replead in part.

I. BACKGROUND

The facts set forth below are drawn from the Complaint and are presumed true for purposes of this motion.

In September 1999, Richard Graham, Jose Figueroa and William Kanelos were protective custody status inmates in the Fishkill SHU.*fn1 Graham arrived at Fishkill on September 3, 1999, and was placed in Unit Q of the SHU under protective custody status on September 7, 1999. Complaint ("Compl.") ¶ 16F(a)-(b).*fn2 Graham also met with medical personnel on September 7, 1999. See id. ¶ 16F(c). He was transferred to another facility for a court appearance on September 9, 1999, and subsequently returned to Unit Q on September 16, 1999. See id. ¶ 16F(h). After returning to Fishkill, Graham "made known that he didn't feel well" and that he was concerned he had not received his prescribed medications for several health conditions. Id. ¶ 16F(j)-(k). Graham saw a physician on September 21, 1999, and received his medications at that time. See id. ¶ 16F(i). Graham alleges that he was deprived of his medications for a total of thirteen days. See id. ¶ 16F(k).

On or about September 9, 1999, Graham met with Lt. Symanowicz to discuss the conditions of confinement for protective custody status inmates in the SHU. See Exhibit F to Complaint. On September 17, 1999, Graham sent a memo to Lt. Symanowicz that confirmed this conversation and detailed more than twenty-five complaints regarding the conditions in the SHU. See id. Graham and Lt. Symanowicz met again on September 24, 1999. See id. On September 26, 1999, Graham sent a second memo to Lt. Symanowicz regarding this second meeting that contained more than ten additional complaints regarding confinement conditions.*fn3 See id. On that same day, plaintiffs Figueroa, Graham and Kanelos signed the Complaint in this case. The plaintiffs actually filed suit on December 9, 1999.

In their Complaint, plaintiffs allege that protective custody inmates housed in the O, P and Q galleries at Fishkill are subjected to a number of unconstitutional conditions of confinement. These conditions include failing to allow those inmates to be out of their cells for the required amount of time, depriving them of job opportunities, denying access to religious services, denying prison wages, failing to provide adequate medical care, limiting the location and content of their meals, and denying access to the courts. The complete list of allegations consumes twenty handwritten pages.

II. LEGAL STANDARD

Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). "The task of the court in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Cooper v. Parsky, 140 F.3d 433, 440(2d Cir. 1998) (internal quotation marks and citation omitted). To properly rule on such a motion, the court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmovant's favor. See Harris, 186 F.3d at 247. Nevertheless, "[a] complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6)." De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 70 (2d Cir. 1996) (internal quotation marks and citations omitted).

However, pro se complaints are held to "less stringent standards than formal pleadings drafted by lawyers," and are to be construed liberally on a motion to dismiss. Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, a pro se complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim[s] which would entitle [them] to relief." Hughes v. Rowe, 449 U.S. 5, 10 (1980).

III. DISCUSSION

A. Class Certification

Plaintiffs Graham, Figueroa and Kanelos seek to bring this suit as a class action on behalf of all protective custody status inmates in the Fishkill SHU.

In order to represent a class, a plaintiff must satisfy the requirements of Rule 23(a)(4) of the Federal Rules of Civil Procedure by being able to "fairly and adequately protect the interests of the class." However, "[i]t is well settled in this circuit that pro se plaintiffs cannot act as class representatives. They do not satisfy the requirements of Rule 23(a)(4)." McLeod v. Crosson, No. 89 Civ. 1952, 1989 WL ...


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