The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS THE COMPLAINT
Pursuant to 42 U.S.C. § 1983, plaintiff, Lavon Richardson, an
inmate at the Attica Correctional Facility, brings this action
pro se, alleging the violation of his constitutional rights in
September 1999 by various officials at the Green Haven
Correctional Facility*fn1 and the Fishkill Correctional
Facility,*fn2 as well as by the New York State Department of
All Defendants, with the exception of Garetti, filed a motion
to dismiss in accordance with the Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). The Attorney General contends
that Garetti was never served, since he has not asked for
representation. The docket in the case shows that Garetti waived
personal service of process pursuant to Fed.R.Civ.P. 4(d) on
July 16, 2001. This means that he has been served by mail, and
is currently in default.
While the motion to dismiss was sub judice, the United States
Supreme Court turned Second Circuit law on exhaustion of
administrative remedies by prisoners on its head. It overruled
this Circuit's conclusion that there are exemptions to the
Prison Litigation Reform Act's requirement that every claim
asserted by a prisoner must first be grieved administratively.
Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12
(2002). Because the complaint does not allege that Plaintiff has
exhausted his administrative remedies, it must be dismissed in
its entirety.*fn4 Moreover, even if the claims against
defendants Ercole, Goord and Bigit had been exhausted, they
would have to be dismissed on motion, because Plaintiff sets
forth no cognizable basis for holding them liable. Thus, for the
reasons stated below, the motion is granted and the complaint is
dismissed as against all Defendants. The dismissal is with
prejudice as to defendants Ercole, Goord and Bigit, and without
prejudice as to the remaining Defendants.
As is true with many pro se complaints, the actual pleading
filed by Richardson is spare. He has fleshed out his allegations
with a letter to the Court, which I am prepared to treat as a
pre-answer amended complaint filed as of right pursuant to
Fed.R.Civ.P. 15(a). Reading the allegations of these two
documents most favorably to Plaintiff, he alleges the following:
Before breakfast on September 20, 1999, at Green Haven
Correctional Facility, defendants Deacon and Hillman verbally
harassed Richardson by telling him that he had to cut his
"locks" (hair) or else he would be prohibited from going to the
commissary. (See Pl.'s Am. Compl. § IV). After breakfast,
Richardson requested and was issued a pass by Hillman to go to
the hospital, where he worked as an inmate health aide. When he
arrived at the hospital, two officers told Richardson to be
careful because Hillman and Deacon were "trying to trap [him]
off" by continually calling the hospital to check on
Richardson's whereabouts. (See Pl.'s Am. Compl., § IV).
Plaintiff was given permission to go the commissary, but after
making a purchase was "keep-locked" by Hillman and
Deacon.*fn5 (See id.) Hillman then grabbed Richardson by
his hair and escorted him back to his cell. (See id.) The
following day, Deacon tossed a picture into Richardson's cell.
The photograph was a depiction of a lynch mob hanging three
black men from a tree. Deacon and Hillman then told Richardson
that he was next. (See id.) Richardson filed a grievance, and
Investigator Bigit was assigned to examine the allegations. On
September 24, 1999, four days after Richardson's initial
harassment, Investigator Bigit had Richardson transferred to the
Fishkill Correctional Facility, away from Hillman and
Once at Fishkill, Richardson was placed in a Special Housing
Unit (SHU) for 30 days as a result of a misbehavior report that
Hillman had filed back at Green Haven.*fn7 (See Pl.'s Am.
Compl., § IV; see also Letter from Richardson to Judge McMahon
09/10/01). Officer Garetti told Richardson that because of the
report filed against officers Hillman and Deacon, Richardson was
going to be receiving the maximum penalty in SHU. (See Pl.'s
Am. Compl., § IV)
On January 12, 2000, a Tier III hearing was held to address
Capra's misbehavior report on Richardson. Following the hearing,
defendant Perez issued Richardson a penalty of 365 days in
SHU.*fn8 (See Pl.'s Am.Compl.). Perez, who was the program
deputy for Richardson,*fn9 discussed the outcome of
Richardson's disciplinary hearing with Capra. (See Letter from
Richardson to Judge McMahon of 09/10/01.) In addition to the
penalty issued by Perez, defendant Mazzuca's appointed hearing
officer sentenced Richardson to an additional 90 days in SHU.
(See Pl.'s Am.Compl. § IV-A.)
Richardson alleged that Investigator Bigit expressed to him
that everything would be "all right" but then never responded to
Richardson's letters following his transfer to Fishkill.
Richardson also alleged that Bigit sent an officer from the
Inspector General's office to Fishkill who instructed Richardson
not to file any charges against Hillman and Deacon because the
officers had already apologized and it would only make the
department look bad.
Rule 12(b) of the Federal Rules of Civil Procedure provides
for dismissal of a complaint for lack of subject matter
jurisdiction or that fails to state a claim upon which relief
can be granted. The standard of review on a motion to dismiss is
heavily weighted in favor of the plaintiff. The Court is
required to read a complaint generously, drawing all reasonable
inferences from the complaint's allegations. California Motor
Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct.
609, 30 L.Ed.2d 642 (1972). "In ruling on a motion to dismiss
. . . the court is required to accept the material facts alleged
in the complaint as true." Frasier v. General Elec. Co.,
930 F.2d 1004, 1007 (2d Cir. 1991). The Court must deny the motion
"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." Stewart v. Jackson & Nash, 976 F.2d 86, 87 (2d Cir.
1992) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.