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RICHARDSON v. HILLMAN

April 18, 2002

LAVON RICHARDSON, PLAINTIFF,
V.
C.O. JAMES HILLMAN; C.O. RICHARD DEACON; LT. MICHEAL CAPRA, LT. GARETTI; DEP. SUPT. ROBERT ERCOLE; DEP. SUPT. ADA PEREZ; SUPT. WILLIAM MAZZUCA; FRANK BIGIT, I.G. INVESTIGATOR; COMMISSIONER GOORD, SUED IN THEIR PERSONAL AND INDIVIDUAL CAPACITIES, DEFENDANTS.



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 Correctional Services.*fn3

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.

ALLEGED FACTS

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 Deacon.*fn6

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.

DISCUSSION

I. STANDARD OF REVIEW

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. 99, 2 ...


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