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March 30, 2001


The opinion of the court was delivered by: Kahn, District Judge.


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 Cir. 1993).

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 rights statutes).

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, ...

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