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September 18, 2002


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


Martin Baskerville, an inmate presently incarcerated at Elmira Correctional Facility, brings this action pro se pursuant to 42 U.S.C. § 1983 alleging that defendants violated his constitutional rights under the First and Eighth Amendments of the Constitution at Sing Sing Correctional Facility in August 2000. Specifically, he alleges that corrections officers have filed a frivolous misbehavior report against him in retaliation for his filing grievances and a lawsuit against the State of New York. The allegedly frivolous misbehavior report resulted in his wrongful disciplinary confinement. Plaintiff further alleges that medical personnel have failed to provide him with adequate care, that a corrections officer assaulted him, and that his legal materials were stolen, thereby denying him access to the courts.

Defendants Michael Blot, Frankie Carabello, Christopher Holder, Elizabeth Williams and Zina Diaz — all corrections officers or nurses employed by the New York State Department of Corrections — now move for dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that: (1) plaintiff has failed to exhaust his administrative remedies to certain claims as required by the Prison Litigation Reform Act of 1995, as amended, 42 U.S.C. § 1997(e)(a); (2) plaintiff has failed to state a claim on which relief may be granted; (3) plaintiff has failed to allege any personal involvement by defendants in certain of the alleged constitutional violations; (4) defendants are entitled to qualified immunity; and (5) this Court lacks jurisdiction over the subject matter of this action pursuant to the Eleventh Amendment. For the reasons set forth below, the motion is granted in part and denied in part.


The following facts are taken from the complaint and are assumed to be true for purposes of this motion. On August 2, 2000, Baskerville was transported to Sing Sing Correctional Facility in connection with an action he had filed in the New York Court of Claims that was scheduled to go to trial on August 3, 2000. (Complaint at ¶ 2.) Shortly after his arrival at Sing Sing, he was interviewed by Nurse Zina Diaz, who provided him with prescribed medication for his high blood pressure. (Id. at ¶ 4.) In addition, Nurse Elizabeth Williams ordered a refill of that prescription, but informed plaintiff that because the facility's pharmacy had been closed for three months, she would have to order the medication from an outside pharmacy. (Id.)

At approximately 10:00 p.m. that night, Baskerville's personal property — including his legal materials — was allegedly returned to him in a garbage bag that was in "disarray." (Id. at ¶ 8.) He complained verbally to the area supervisor about the condition in which his property and legal materials were returned to him. (Id. at ¶ 9.) He then discovered that certain of his legal documents were missing. (Id.) The next day, when he appeared before the Honorable Stephen J. Mignano, Justice, New York Court of Claim, for his trial, he informed the court that the legal materials he needed for the trial had been stolen. (Id. at ¶ 10.) As a result, the trial was adjourned. (Id.)

Plaintiff also alleges that on August 6, 2000, he requested that he be seen by the facility's medical staff during a sick call because he needed a refill of his blood pressure medication, but Nurse Williams told him that the medication had not yet arrived from the outside pharmacy. (Id. at ¶ 11.)

The next day, August 7, while he was proceeding to the recreation area, he was stopped by Corrections Officer Carabello and directed to a flight of stairs to be pat frisked prior to entering the recreation yard. (Id. at ¶ 13.) While awaiting at the top of the stairs, plaintiff overheard an altercation taking place between Corrections Officer Blot and Patrick Graham, an inmate, during which Blot threatened to "kick Graham's ass." (Id. at ¶¶ 13, 14.) Baskerville then decided "not to participate in recreational activity in fear that he would be treated in the same manner as inmate Graham," and instead returned to his cell. (Id. at ¶ 15.)

While being escorted back to his cell by Carabello, he encountered Blot, who had just finished locking Graham in his cell. (Compl. at ¶ 16.) As plaintiff awaited the opening of his cell door, Blot allegedly grabbed him from behind, placed him in a choke hold, shoved him into the bars of the cell, and yelled "[y]ou want to file [g]rievances and law suit and complaint, your nothing but a coward do you understand me." (Id.) Blot then tightened his "violent choke hold" until Baskerville was on the verge of collapsing and then "violently shove[d]" him into his cell. (Id.)

Following the incident, Ms. Diaz evaluated him by allegedly simply looking through the cell door. (Id. at ¶ 18.) Later that day, while his injuries were being photographed, Christopher Holder, the area supervisor, allegedly told plaintiff that "I should have fucked you up the minute you entered the unit." (Id. at ¶ 19.)

That same day, Baskerville was issued a misbehavior report signed by Blot and Carabello and endorsed by Holder. (Id. at ¶¶ 20, 21.) He was charged with refusing a direct order, harassment, inmate movement, lying, and failing to comply with pat frisk procedures. (Id.) In addition, Holder issued a "Restraint Order" that required that he be placed on full restraints whenever he stepped outside his cell. As a result, plaintiff alleges that on August 9, 2000, he was forced to wear leg irons while taking a shower. (Id. at ¶ 22.) He claims that he was eventually allowed to speak to Deputy Superintendent of Security William Connelly, who reviewed the misbehavior report and determined that the restraint order was unwarranted since he had not violated any rules or regulations. (Id. at ¶ 23.)

Baskerville alleges that a Tier III disciplinary hearing regarding the August 7 misbehavior report was scheduled to commence on August 13 at Sing Sing, but was postponed. (Id. at ¶ 24.) On August 14, he was transferred back to Elmira, where he was placed in pre-hearing keeplock until August 22. (Id.) Plaintiff claims that Sergeant Alan Erickson at Elmira interviewed him, reviewed the misbehavior report, determined that he was not guilty of the charges and directed that he be released from keeplock. (Id.) On September 1, 2000, Deputy Superintendent of Administration William J. Hopkins administratively dismissed the misbehavior report. (Id. at ¶ 26.)

Plaintiff also alleges that on August 22, the medical staff at Elmira assessed the injuries he suffered on August 7 at Sing Sing. (Id. at ¶ 25.) He claims that after he was "properly medically evaluated," back x-rays were taken, medications were prescribed and he was referred to a doctor at the facility. (Id.)

Baskerville claims that the "frivolous" misbehavior report was filed in retaliation for his seeking redress in a prior action before the Honorable Barbara S. Jones of this Court, Baskerville v. Goord, No. 97 Civ. 6413, and for his filing of grievances against corrections officials at Sing Sing. (Compl. at ¶ 27.) The filing of the "frivolous" misbehavior report was designed "to chill a person of ordinary firmness from continuing to engage in activity protected by the First Amendment," since its result significantly affected his day-to-day life in prison: he was placed in keeplock confinement at Sing Sing for seven days,*fn1 denied showers and phone privileges during that confinement, and placed in keeplock confinement at Elmira for an additional eight days.*fn2 (Id. at ¶ 28.) Plaintiff claims that Diaz and Williams violated his Eighth Amendment rights to be free from cruel and unusual punishment by failing to provide him adequate medical care for his injuries after the alleged assault and by failing to obtain his prescribed medication in a timely manner. (Id. at ¶ 29.) He also claims that he suffers from post-traumatic stress disorder, as well as neck and lower back injuries. (Id.) Plaintiff seeks unspecified monetary damages and injunctive relief.

Defendants have now moved to dismiss the complaint.


I. Standard for Motion to Dismiss the Complaint

In reviewing a motion to dismiss a complaint, a court must accept as true the factual allegations in the complaint and must read the pleadings in the light most favorable to and draw all reasonable inferences in favor of the non-moving party, See Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001); Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). Dismissal of the complaint is only proper when "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The review is limited, and "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).

"This standard is applied with even greater force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). Where a plaintiff proceeds pro se, a court must construe the complaint liberally and "`interpret [it] to raise the strongest arguments that [it] suggest[s],'" Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)), thus holding the pro se pleading "to less stringent standards than formal pleadings drafted by lawyers. . . ." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). In addition, the court may consider factual allegations made by a pro se plaintiff in opposition papers and other additional materials. See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987); Benitez v. Straley, No. 01 Civ. 0181, 2002 WL 485692 (S.D.N.Y. Mar. 27, 2002), at *2 (slip op.); Johnson v. Eastchester Union Free Sch. Dist., No. 01 Civ. 2835, 2002 WL 449584, at *2 (S.D.N.Y. Mar. 22, 2002); Burgess v. Goord, No. 98 Civ. 2077, 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999). However, a pro se party's bald assertions of a constitutional violation without any factual predicate cannot survive even the most liberal standard accorded a Rule 12(b)(6) motion. See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996); LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995).

II. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act of 1995 ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). In Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002), the United States Supreme Court held that the "PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." This requirement extends to cases in which a plaintiff seeks a remedy not available though the administrative process, such as monetary damages. See Booth v. Churner, 532 U.S. 731, 733-34, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Porter mandates that every claim asserted by a prisoner must first be grieved administratively prior to seeking judicial relief.*fn3 Thus, a plaintiff may only pursue an action in federal court after exhausting "any available administrative remedies, including ...

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