The opinion of the court was delivered by: Kahn, District Judge.
MEMORANDUM — DECISION AND ORDER
Presently before the Court is Respondent's motion to dismiss
and Petitioner's motion to compel a polygraph test. For the
following reasons, Respondent's motion is DENIED and
Petitioner's motion is DENIED.
Petitioner F. Lee Hinebaugh, filed the instant petition for
habeas corpus in 1998. The petition alleges that, commencing in
December 1996 and continuing through February 1998, various
officials at the Federal Correctional Institution located in Ray
Brook, New York ("Ray Brook") filed a series of false
retaliatory incident reports and disciplinary charges against
Petitioner because of disputes he had with Clement P. Shacks,
his case manager, and because Petitioner filed grievances
against various individuals regarding their treatment of him.
Petitioner alleges further that, as a result of these charges,
he lost approximately three months of good time credit. The
instant petition seeks to have his disciplinary record expunged
and to have his good time credits restored.
A. Standard for Dismissal
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), for "failure to state a claim upon which
relief can be granted," must be denied "unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim [that] would entitle him to relief." Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
In assessing the sufficiency of a pleading, "all factual
allegations in the complaint must be taken as true," LaBounty
v. Adler, 933 F.2d 121, 123 (2d Cir. 1991), and all reasonable
inferences must be construed in favor of the plaintiff, see
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d
90 (1974); see also Bankers Trust Co. v. Rhoades,
859 F.2d 1096, 1099 (2d Cir. 1988) (applying the principle of construing
inferences in favor of plaintiff). As this Circuit has stated,
when determining the merits of a motion to dismiss,
consideration is limited to the factual allegations
in [the] complaint, which are accepted as true, to
documents attached to the complaint as an exhibit or
incorporated in it by reference, to matters of which
judicial notice may be taken, or to documents either
in plaintiffs' possession or of which plaintiffs had
knowledge and relied on in bringing suit.
Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d
The Rules do not require the plaintiff to set out in detail
the facts upon which the claim is based, but only that the
defendant be given "fair notice of what the . . . claim is and
the grounds upon which it rests." Conley, 355 U.S. at 45-46,
78 S.Ct. 99. Individual allegations, however, that are so baldly
conclusory that they fail to give notice of the basic events and
circumstances of which the plaintiff complains are meaningless
as a practical matter and, as a matter of law, insufficient to
state a claim. See Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.
1987) (applying this standard to a complaint based upon civil
B. Prisoner's Petition for Habeas Relief Instead of Filing
Civil Rights Action
Respondent's first contention as to why the instant petition
should be dismissed is that it improperly challenges the
conditions rather than the fact or duration of Petitioner's
confinement. This Court disagrees. Petitioner's habeas petition
seeks to have his disciplinary record expunged and have
allegedly unlawfully rescinded good time credits restored.
The restoration of his good time credits and expungement of
his disciplinary record would, as alleged, accelerate his
release from prison by approximately three months. Such a result
challenges both the fact and duration of Petitioner's
confinement and his sole remedy in federal court is a properly
filed habeas petition under 28 U.S.C. § 2241. See Edwards v.
Balisok, 520 U.S. 641, 644, 117 S.Ct. 1584, 137 L.Ed.2d 906
(1997); Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct.
1827, 36 L.Ed.2d 439 (1973); Carmona v. United States Bureau of
Prisons, 243 F.3d 629, 632 (2d Cir. 2001). Accordingly,
Respondent's motion to dismiss based on the fact that he
improperly filed the current matter as a habeas petition instead
of a civil rights action is denied.*fn1
C. Dismissal of Counts I and II as Moot
Counts I and II of the Petition reference an incident report
allegedly issued on December 11, 1996. Respondent, based on
information contained in the Petition's introduction, believed
that Petitioner was referencing incident report 451918 when
making his motion to dismiss. Respondent conducted a review of
the Petitioner's prison records and did not find any record of
the issuance of that report. Respondent surmised that Petitioner
might be challenging incident report number 456116. That report
was ultimately expunged from Petitioner's record and according
to Respondent rendered Counts I and II moot.
In response, Petitioner submitted a copy of incident report
number 45198. That report, issued on November 23, 1996 and
delivered to Petitioner at 1:27 A.M. on the morning of November
24, 1996, was ultimately dismissed upon review by prison
officials. Thus, assuming Counts I and II of the Petition were
based upon incident report 45198 or 456116, ...