United States District Court, S.D. New York
March 31, 2004.
JUAN HERNANDEZ Plaintiff, -against- GLENN S. GOORD, et al., Defendants
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION & ORDER
This action arises out of several alleged incidents of harassment,
retaliation, and conspiracy against pro se plaintiff Juan Hernandez
during his incarceration at Sing Correctional Facility and Green Haven
Correctional Facility. Specifically, plaintiff brings suit pursuant to
42 U.S.C. § 1983 for damages against twenty-three employees of both
Certain of the defendants specifically, Glenn S. Goord, Charles
Greiner, Noel F. Morris, Kelvin Gadson, Carol T. Caban, Robert Pagliuca,
Lucien J. LeClaire Jr., Kenneth Perlman, Richard Alexis, Raymond J. Wilk,
Jr., James Lawyer, and Charles Butenhoff move to dismiss the
complaint pursuant to Fed.R.Civ.P. 8 for failure to provide a short
and plain statement of the claim and Rule 12(b)(6) for failure to state
a claim upon which relief may be
granted. For the reasons set forth below, the motion is granted in
part and denied in part.
Plaintiff's claim of alleged harassment begins with the litigation
entitled Hernandez v. Keane, brought by Hernandez in February
1997 against several Department of Correctional Services ("DOCS")
employees at Sing Sing, including defendant Charles Greiner.
See No. 97 Civ. 1267 (BSJ), 2000 WL16951, (S.D.N.Y. Jan. 7,
2000). In Keane, plaintiff alleged indifference to his medical
needs during the treatment of a gunshot wound to his hand sustained in
1992 during an incident that led to his arrest. See Hernandez v.
Keane, 341 F.3d 137, 140-41 (2d Cir. 2003). A jury trial was held in
October 2000 on Hernandez' claim of medical indifference resulting in a
verdict in plaintiff's favor. Following the verdict, U.S. District Judge
Samuel Conti granted defendants' renewed motion for judgment as a matter
of law pursuant to Fed.R.Civ.P. 50. See Hernandez v. Keane,
No. 97 Civ. 1967 (SC) 2000 WL 34239139, (S.D.N.Y. Nov. 28, 2000). The
U.S. Court of Appeals for the Second Circuit affirmed the district
court's determination. See Hernandez, 341 F.3d at 149.
Plaintiff remains in state custody as a result of his conviction for
attempted murder in the second degree. See id. at 141.
On September 3, 1998, an electrical fire occurred in Sing Sing in the
cell occupied by Hernandez; plaintiff complained he lost numerous items
of property and the fire was an attempt to injure him. (Compl. ¶¶
4-5). In response, the very same day of the fire, Hernandez filed a claim
at Sing Sing relating to the loss of his property during the electrical
fire. (Ex. A12-A15, A49-A50). The procedures established by DOCS relating
to inmate property claims, codified at
7 NYCRR § 1700.1 et. seq., set forth the claims
review process and procedure for appealing the claim to the central
DOCS rejected the claim at both Sing Sing and the central office on the
grounds that its investigation had not established any negligence by DOCS
in connection with the September 3, 1998 fire. (Ex. A68, Letter to PL
from Def. Carol T. Caban ("Caban letter"), DOCS Sr. Budget Analyst,
February 2, 2000). Hernandez then filed an action against the State of
New York in the N.Y. Court of Claims for the value of his property that
was lost in the fire. (Compl., ¶ 3, Ex. A8, A9).*fn1
The action resulted in a trial before the Honorable Thomas H.
Scuccimarra, Judge of the Court of Claims. (Judge Scuccimarra's decision
dated November 29, 2001, attached to Nowve Aff. as exhibit B). At trial,
Hernandez represented himself, testifying as to the events in question
and introducing exhibits into evidence. (Nov. 29, 2001 Decision at 7). At
the trial's conclusion, Judge Scuccimarra dismissed the claim, which
alleged that the state's agents negligently allowed damage and loss of
plaintiffs personal property during the September 3, 1998 cell fire at
Sing Sing. (Decision; Nowve Aff., Ex. B).
After the fire, Hernandez was transferred to another cell. The
following week on September 8, 1998 in plaintiff's new
cell, another fire occurred. Hernandez maintains Correctional Officer
Harris was in the vicinity when the fire occurred and "Harris was known
to set inmates cells on fire, if you were disliked by the staff." (Pl.'s
Mem. Response Mot. to
Dismiss ("Response") at 7)*fn2. Plaintiff describes this fire as
"an attack on Plaintiffs life." (Compl. ¶ 12). Corrections Officer
Morris, also a defendant, who served as the prison's Fire and Safety
Chief, reported the fire was caused by a faulty ballast a
component used to stabilize current in a light and was not
suspicious. (Exhibit A4).
Following the second fire, Hernandez was transferred to involuntary
protective custody ("IPC"), a remedy used to protect inmates at serious
risk of harm from other inmates. It was determined Hernandez did not
belong in protective custody because, according to Hernandez, "his
problems were not with inmates of the jail. But was in fact
caused by his filing claims and grievances and was with the
administration and staff members." (Response at 7) (emphasis in
original). Hernandez subsequently was returned to his original housing
unit. Although the hearing regarding the transfer was recorded, the
cassette recording currently is missing, according to Hernandez. (Compl.
An attorney representing Hernandez then sent letters to the Attorney
General's office demanding that the alleged retaliatory actions be
investigated and cease. Hernandez claims that the harassment and
retaliation have not ceased. (Compl. ¶ 21).
On January 25, 2000, plaintiff was moved from Sing Sing to Green Haven.
He contends that the transfer was based upon untrue allegations that he
had an improper "relationship" with a staff member at Sing Sing. (Compl.
¶¶ 24, 26). A few months after his transfer to Green Haven, defendant
Charles Greiner became Superintendent at Green Haven. Plaintiff contends
acts of harassment and retaliation that allegedly took place at
Green Haven which are set forth below occurred after
Greiner became Superintendent there, were retaliatory in nature, and were
motivated, at least in part, because of the Keane case, in
which Hernandez had named Greiner as a defendant (Compl. ¶¶ 3, 25-27).
Specifically, plaintiff alleges that "[f]rom the time
Plaintiff arrived in Green Haven, till the time Mr. Greiner arrived, the
plaintiff was not harassed or retaliated on. . . . Once Mr. Greiner
arrived in this facility, the Plaintiff began to be harassed and
retaliated on by the security staff."(Compl. ¶ 25, 28).
On October 5, 2000, plaintiff was removed from his cell at Green Haven
and placed in federal custody in order to attend the trial in
Keane. (Id. ¶ 29). Plaintiff alleges that upon his
return to Green Haven after the conclusion of the trial, he found a
hangman's noose made of string on his bed. (Compl. ¶ 33, Ex. B17,
43). Hernandez subsequently filed a grievance about the noose; however,
according to plaintiff, defendants attempted to cover-up the incident and
that `that grievance mysteriously disappeared thereby denying [him] the
grievance mechanism." (Compl. ¶ 34). Hernandez did successfully file
numerous other grievances during this period, including a grievance about
the missing grievance. (Compl. ¶¶ 28, 35).
On March 1, 2001 Hernandez was placed in a top bunk of a double cell,
which caused "more pain in his hand and wrist," which in turn required
him to take an increased dose of addictive pain medication. (Compl. ¶¶
37-40). Hernandez filed grievances and Green Haven acknowledged that an
error had been made in placing him in a double cell, and directed that he
be relocated to a single cell "as soon as one is available." (Ex.
In June 2001, Hernandez requested to examine his medical records from
October 5, 2000 to March 1, 2001 and allegedly was told they were lost
(Compl. ¶ 736). Plaintiff states that he
received three "bogus" misbehavior reports at Green Haven, issued
on April 16, July 12, and August 6, 2001, all of which were appealed to,
and affirmed by, Superintendent Greiner. (Compl. ¶¶ 42, 43).
Defendant James Lawyer also allegedly told defendant Charles Butenhoff
"not to give plaintiff nothing, and not let plaintiff out of his cell
during the scheduled runs." Id. Finally, Lawyer allegedly
stated to plaintiff, "this is what happens when you write us up, so
don't cry about getting burnt." Id.
Hernandez avows he is being "targeted by the administrative and
security staff," has been "continuously harassed and retaliated on" by
the Green Haven staff and had to "file complaints" on six different
dates. (Compl. ¶¶ 42-44, 49). Despite numerous grievances and
complaints, plaintiff identifies no administrative determination that
supports his claim that he was harassed; he does, however, aver that the
"security staff" instructed him to stop filing grievances and "maybe
these officers would stop harassing [him]." (Compl. ¶ 45-50).
A. Rule 12(b)(6) Standard
In reviewing a motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6), a
court must accept as true all of the factual allegations in the
complaint, draw inferences from those allegations in the light most
favorable to plaintiff, and construe the complaint liberally. 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). A
motion to dismiss should not be granted 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." Walker v. City of New York
974 F.2d 293, 298 (2d Cir. 1992) (quoting Ricciuti v. New York
City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)); see
also Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)
(`This rule applies with particular force where the plaintiff alleges
civil rights violations.") (citing Hernandez v. Coughlin,
18 F.3d 133, 136 (2d Cir. 1994)). 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 (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).
A court generally is limited to the facts stated in the complaint, for
purposes of a Rule 12(b)(6) motion, which "include[s] any written
instrument attached to it as an exhibit or any statements or documents
incorporated in it by reference." Int'l Audiotext Network. Inc. v.
AT & T Co., 62 F.3d 69, 72 (2d Ci.1995) (per curiam) (quoting
Cortec Industries. Inc. v. Sum Holding L.P., 949 F.2d 42, 47
(2d Cir. 1991)).
When considering a Rule 12(b)(6) motion to dismiss against a pro se
plaintiff, such as Juan Hernandez, this Court will consider as true facts
taken not just from plaintiff's complaint and accompanying exhibits, but
also plaintiff's responsive memoranda,*fn3 See Baskerville v.
Blot 224 F. Supp.2d 723, 728 (S.D.N.Y. 2002) ("[T]he court may
consider factual allegations
made by a pro se plaintiff in opposition papers and other
additional materials."); see also Gill v. Mooney,
824 F.2d 192, 195 (2d Cir. 1987); 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). Moreoever, the pro se litigant is also held
to "less stringent standards than formal pleadings drafted by
lawyers . . ." and a Court "`must construe the complaint liberally and
`interpret [it] to raise the strongest arguments that [it] suggest[s].'"
See Haines v. Kemer, 404 U.S. 519, 520 (1972); Soto v.
Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
B. Those Aspects of Plaintiff's Sing Sing Claims
that Arise Out of the September 3, 1998 Cell Fire Are Barred by Issue
Defendants invoke the doctrine of collateral estoppel to bar plaintiff
from seeking relief on the grounds that the same factual issues raised in
this complaint were previously decided by the New York Court of Claims
against Hernandez. The claims arising out of his confinement in Sing Sing
include the alleged harassment and retaliation of the two cell fires,
liability for property damage resulting from the September 3, 1998 fire,
the transfer to EPC, the loss of the hearing tape, and the transfer to
Green Haven. "Collateral estoppel, or issue preclusion, prevents parties
or their privies from relitigating in a subsequent action an issue of
fact or law that was fully and fairly litigated in a prior proceeding."
Marvel Characters v. Simon, 310 F.3d 280, 288 (2d Cir. 2002);
see also Commissioner v. Sunnen, 333 US. 591, 598,
92 L.Ed. 898, 68 S.Ct. 715 (1948).
A federal court must afford a state court judgment "the same preclusive
effect as would
be given to the judgment under the law of the state in which the
judgment was rendered." Johnson v. Watkins, 101 F.3d 792, 794
(2d Cir 1996); see also Leather v. Ten Eyck, 180 F.3d 420, 424
(2d. Cir. 1999) (rule applies to Section 1983 actions). As such, this
Court need look to New York law to determine the preclusive effect of
plaintiff's Court of Claims action. See Giakoumelos v. Coughlin
88 F.3d 56, 59 (2d Cir. 1996). Under New York law, issue preclusion
applies when (a) the issue of law or fact has necessarily been decided in
the prior action and is decisive of the present action and (b) there was
a full and fair opportunity to contest the issue. See Parker v.
Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349, 690 N.Y.S.2d 478
(1999); see also Schwartz v. Public Admin., 24 N.Y.2d 65,
71, 298 N.Y.S.2d 955 (1969).
Defendants' assertion is correct insofar as Hernandez may no longer
dispute the factual issue of the cause of the September 3, 1998 cell
fire. Moreover, it is equally true that Hernandez may not initiate action
concerning the legal issue of New York State's liability for any property
damage that resulted from that fire or any action dependent upon the
defendants allegedly being the cause of that fire. Hernandez was afforded
a full and fair opportunity to contest these issues before Judge
Scuccimarra and his ruling stands as decisive.
However, defendants err in their conclusion that the entirety of
plaintiff's Sing Sing claims arise from the same nucleus of operative
facts that underlies the complaint here. Much of Hernandez' claims
arising from his stay in Sing Sing are based on facts independent of and
unconnected to the trial conducted before Judge Scuccimarra.
For example, the facts concerning Hernandez' claims for harassment and
retaliation stemming from the second fire the September 8, 1998
fire the transfer of Hernandez to
involuntary protective custody, the alleged disappearance of the
cassette recording made of the hearing on his transfer to IPC, and the
transfer of Hernandez from Sing Sing to Green Haven which,
Hernandez purports, would allow Superintendent Greiner to continue to
control Hernandez' fate neither were raised before, nor
considered by, Judge Scuccimarra.
Thus, only the issues already decided by the New York Court of Claims
concerning the September 3, 1998 fire are barred by the doctrine of
collateral estoppel from being reconsidered in this proceeding.
C. Plaintiff Has Set Forth a Short and Plain
Statement of Retaliation Pursuant to 42 U.S.C. § 1983
Defendants assert that the complaint fails to meet the pleading
standard set forth in Rule 8(a) requiring a complaint to contain "a short
and plain statement of the claim showing that the pleader is entitled to
relief." See generally Swierkiewicz v. Sorema, 534 U.S. 506,
512 (2002). The particular deficiency, defendants contend, is that
plaintiff's allegations are unsupported by facts.
Defendants contend that a complaint must contain factual support for
its allegations to survive a motion to dismiss and that to state a civil
rights claim pursuant to section 1983 in the Second Circuit, "a complaint
must contain specific allegations of fact which indicate a deprivation of
constitutional rights. . . ." See Alfaro Motors, Inc. v.
Ward, 814 F.2d 883, 887 (2d Cir. 1987). Yet defendants overlook the
recent evolution of case law in the Second Circuit sparked by
Swierkiewicz. In that case, the U.S. Supreme Court held that a
plaintiff need not
plead facts establishing a prima facie case of employment
discrimination in order to survive a motion to dismiss because such a
requirement creates a heightened pleading standard incongruent with the
notice pleading standard set forth in Fed R. Civ. P. Rule 8(a). See
Swierkiewicz, 534 U.S. at 510-511. Instead, the notice pleading
system relies "on the liberal discovery rules and summary judgement
motions to define disputed facts and issues and to dispose of
unmeritorious claims." See id. at 512 (citing Conley v.
Gibson, 355 U.S. 41, 47-48 (1957); Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 168-69(1993)).
The Second Circuit in Phelps v. Kapnolas, 308 F.3d 180 (2d
Cir. 2002) elaborated on the contours of the pleading standard in section
1983 actions as follows:
However unlikely it may appear to a court from a
plaintiff's complaint that he will ultimately be
able prove an alleged fact . . ., the court may
not go beyond FRCP 8(aX2) to require the plaintiff
to supplement his pleadings with additional facts
that support his allegation of knowledge either
directly or by inference. Whether the plaintiff
can produce evidence to create a genuine issue
with regard to his allegation is to be resolved
through a motion for summary judgment Of course,
none of this is to say that a court should
hesitate to dismiss a complaint when the
plaintiff's allegation . . . fails as a matter
See id. at 186-87.
The law is straightforward: plaintiff need not plead facts to support
his allegations of constitutional violations beyond the requirements of
Rule 8(a). See Swierkiewicz, 534 U.S. at 512; Phelps,
308 F.3d 186-87; see also Salahuddin v. Cuomo, 861 F.2d 40, 42
(2d Cir. 1988) (Dismissing a complaint pursuant to Rule 8 is a serious
sanction "usually reserved for those cases in which the complaint is so
confused, ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.").
Plaintiff in this action does provide a complaint that meets the
standard of a short and plain statement of the alleged constitutional
violations showing that he is entitled to relief on his retaliation
claim, especially given the deference due a pro se plaintiff. In
particular, Hernandez actually offers more than conclusory allegations of
retaliation, alleging several attacks and threats on his life as specific
factual instances of retaliation against him because he had filed
grievances. See, e.g., Davis v. Goord, 320 F.3d 346, 352-53 (2d
Cir. 2003) (The prisoner's complaint, "read charitably, . . . state[d]
a claim of retaliation and therefore the defendants' 12(b)(6) motion to
dismiss should have been denied.").
In Davis, the Second Circuit wrote that "[i]n order to
survive a motion to dismiss a complaint, a plaintiff asserting a First
Amendment retaliation claim must allege "(1) that the speech . . . was
protected, (2) that the defendant took adverse action against the
plaintiff, and (3) that there was a casual connection between the
protected speech and the adverse action." Davis v. Goord,
320 F.3d 346, 352 (2d Cir. 2003) (citing Dawes v. Walker,
239 F.3d 489, 492 (2d Cir. 2001)).
"Since the filing of prison grievances is a constitutionally protected
activity," plaintiff meets the first prong of the test See id.
(internal citations omitted). In addition, plaintiff has set forth more
than adequate allegations of adverse actions, including attempted bodily
injury and threats on his life. (Compl. ¶¶ 12, 33). Finally, plaintiff
has pled that these adverse actions were caused by his filing grievances.
(Compl. ¶ 25, 28). Accordingly, plaintiff's claim for retaliation
comports with Rule 8(a).
D. Plaintiff Has Set Forth a Claim for Conspiracy
Pursuant to 42 U.S.C. § 1983
Defendants contend that plaintiff's claim that defendants conspired to
violate his constitutional rights pursuant to section 1983 should be
dismissed on the ground that it is frivolous.*fn4 "In order to survive a
motion to dismiss on his § 1983 conspiracy claim, [a plaintiff] must
allege (1) an agreement [between two or more state actors]. . .; (2) to
act in concert to inflict an unconstitutional injury; and (3) an overt
act done in furtherance of that goal causing damages." See
Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002)
(citing Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999)). In Ciambriello, the court explained that "complaints
containing only conclusory, vague, or general allegations that the
defendants have engaged in a conspiracy to deprive the plaintiff of his
constitutional rights are properly dismissed; diffuse and expansive
allegations are insufficient, unless amplified by specific instances of
misconduct." ML (quoting Dwares v. City of N.Y., 985 F.2d 94,
100 (2d Cir. 1993).*fn5 The Second Circuit deemed the factual
allegations inadequate in Ciambriello because
plaintiff had "not provided any `details of time and place,'
Dwares, 985 F.2d at 100, and . . . `fail[ed] to specify in
detail the factual basis necessary to enable [defendants] intelligently
to prepare their defense." Id. However, the Second Circuit has
recognized that conspiracy allegations pursuant to section 1983 "`are by
their very nature secretive operations.' and may have to be proven by
circumstantial, rather than direct, evidence." See Pangburn,
200 F.3d at 72.
As to the first element an agreement between two or more state
actors Hernandez does set forth his allegation of a
conspiratorial agreement as follows:
However, once I file with the court of claims that
my rights were violated, the staff who violated me
tells a few of his colleagues that I've done so,
then the word spreads around amongst those
Department of Correctional workers, and before you
know it I start to get threatened, harassed, by
then. If thats not a conspiracy then you tell me
(Pl. Mem. at 5). This general allegation of conspiracy indeed is
amplified by specific instances of conduct, in accord with
Ciambriello, including two cell fires, the transfer to Green
Haven, the hangman's noose, and the "bogus" misbehavior reports
allegations that, if true, would provide a basis for a claim of
retaliation due to plaintiff's exercise of his First Amendment rights,
satisfying the requirement for an unconstitutional injury and overt acts
in furtherance of that injury.
E. Plaintiff Has Adequately Alleged the Personal
Involvement of Certain of the Defendants, but Not Others
1. Supervisory Defendants
"It is well settled in this Circuit that personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983." See Johnson v. Newburgh Enlarged
Sch. Dist. 239 F.3d 246, 254 (2d Cir. 2001) (citing Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Personal involvement of
supervisory officials in violations alleged pursuant to Section 1983 may
be evidenced in several ways:
(1) the [official] participated directly in the
alleged constitutional violation, (2) the
[official], after being informed of the violation
through a report or appeal, failed to remedy the
wrong, (3) the [official] created a policy or
custom under which unconstitutional practices
occurred, or allowed the continuance of such a
policy or custom, (4) the [official] was grossly
negligent in supervising subordinates who
committed the wrongful acts, or (5) the [official]
exhibited deliberate indifference to the rights of
[others] by failing to act on information
indicating that unconstitutional acts were
Id. Plaintiff names two supervisory officials as
defendants here Glenn S. Goord, Commissioner of the New York
State Department of Corrections, and Charles Greiner, former
Superintendent of Sing Sing and Green Haven. Plaintiff fails to allege
any specific claim of personal involvement against Goord; indeed, he does
not mention him at all in the body of the complaint but for including his
name in a lengthy list of defendants. (Compl. p. 4). Accordingly, the
motion to dismiss as to Goord is granted. This Court now turns to the
issue of Greiner's alleged personal involvement.
Accepting all of plaintiff's allegations as true, and drawing
all inferences favorable to him for purposes of this motion, plaintiff
has adequately alleged Greiner's personal involvement in
the claimed violations. The most favorable reasonable inferences
from plaintiff's allegations point to Greiner orchestrating a campaign of
harassment in retaliation for plaintiff exercising his First Amendment
right to file grievances and pursue other related remedies.*fn6
Plaintiff alleges that "[f]rom the time Plaintiff arrived in Green Haven,
till the time Mr. Greiner arrived, the plaintiff was not harassed or
retaliated on. . . . Once Mr. Greiner arrived in this facility, the
Plaintiff began to be harassed and retaliated on by the security staff."
(Complaint ¶ 25, 28).
In light of the previous grievances and litigations filed by plaintiff
against Greiner, the most favorable inference to be drawn from these
allegations from plaintiff's standpoint is that Greiner was directing the
retaliation, ordering subordinates to violate plaintiff's rights. Thus,
plaintiff has sufficiently alleged the personal involvement of Greiner
for purposes of this motion; accordingly, the motion to dismiss the
complaint on the grounds of lack of personal involvement by Greiner is
denied and motion is granted as to Goord.
2. Subordinate Defendants
Plaintiff alleges that all of the defendants committed specific
retaliatory actions against him in response to his exercise of his First
Amendment rights, though the allegations against only certain of those
defendants satisfy the personal involvement requirement.*fn7 In
defendants Wilk and Perlman are alleged to have covered up the
existence of the hangman's noose as a retaliatory act during an
investigation of the matter. (Compl. ¶ 7; Response at 13, 15; Ex.
B43-52, 56). Moreover, defendants Lawyer and Butenhoff are alleged to
have retaliated against plaintiff by writing "false misbehavior reports."
(Pl's Response to Defs' Mem. Supp. Dismiss at 15). Lawyer also allegedly
told Butenhoff "not to give plaintiff nothing, and not let plaintiff out
of his cell during the scheduled runs." Id. Finally, Lawyer
allegedly stated to plaintiff, "this is what happens when you write us
up, so don't cry about getting burnt." Id.
Drawing the inferences most favorable to plaintiff from these
allegations, the adverse actions allegedly committed by Wilk, Perlman,
Lawyer, and Butenhoff were casually connected to plaintiff's protected
speech and sufficiently set forth the personal involvement of those
defendants. However, the remaining moving defendants who are merely
listed at the beginning of the complaint Morris, LeClaire Jr.,
and Alexis are never connected in the complaint to any particular
adverse action. Accordingly, the motion to dismiss on the grounds of lack
of personal involvement as to those defendants is granted and the
complaint is dismissed as to them with leave to amend within 30 days to
adequately plead the personal involvement of those defendants.*fn8 The
motion as to Wilk, Perlman, Lawyer, and Butenhoff on this ground is
F. Defendants are Not Entitled to Qualified
Defendants also urge that they are immune from suit pursuant to the
doctrine of qualified immunity. Qualified immunity balances the practical
impact of section 1983 suits:
To accommodate the conflict between the goals of
§ 1983 in deterring governmental abuse and
remedying unlawful governmental transgressions on
the one hand, and the societal interest in not
unduly burdening legitimate government operations
on the other, the Supreme Court established
qualified immunity as an affirmative defense to
§ 1983 claims."
Johnson, 239 F.3d at 250 (citing Harlow v.
Fizgerald, 457 U.S. 800
, 814 (1982); Rodriguez v.
Phillips, 66 F.3d 470, 475 (2d Cir. 1995)). "A government actor
performing a discretionary task is entitled to qualified immunity from
§ 1983 suits if either: (a) the defendant's action did not violate
clearly established law, or (b) it was objectively reasonable for the
defendant to believe that his action did not violate such law." Id.
(quoting Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996)).
Defendants mistakenly focus upon whether there is clearly established
law regarding the receipt of grievances and a failure to act. As set
forth above, the complaint alleges affirmative retaliation by both
Greiner and his subordinates in response to plaintiff's exercise of his
First Amendment rights. Such actions, including the creation of bogus
misbehavior reports, improperly motivated prison transfers, and threats
and attacks on plaintiffs life in retaliation for exercising plaintiff's
First Amendment rights, violate clearly established law and no reasonable
government official could think otherwise. See e.g., Davis,
320 F.3d 352.
G. plaintiff's Claims Against Defendants in Their
Official Capacities for Money Damages Are Dismissed
Plaintiff requests relief in the form of monetary damages and
injunctive relief, asserting claims against defendants in both their
official and individual capacities. Defendants are correct that the
claims against them in their official capacities for money damages are
barred by the Eleventh Amendment to the U.S. Constitution, which
precludes suits in federal court against a state's agent absent consent.
See Pennhurst Interstate Sch. & Hosp. v. Halderman,
465 U.S. 89 (1984); see also Hafer v. Melo, 502 U.S. 21, 25 (1991).
However, state agents may be sued in their official capacities for
equitable relief affecting the official's future conduct, rather than
retroactive monetary relief. See Pennhurst at 102-03; see
generally Ex Parte Young, 209 U.S. 123 (1908). Accordingly,
plaintiff's claims against defendants in their official capacities for
money damages are dismissed.
For the reasons set forth above, plaintiff's claims arising out of the
property Hernandez lost in the September 3, 1998 fire and the cause of
that fire are dismissed in accord with the doctrine of issue preclusion
as are the claims against Gadson, Caban, and Pagliuca. In addition,
plaintiff's claims against defendants for money damages in their official
capacities are dismissed. Finally, plaintiff's claims against defendants
Goord, Morris, LeClaire Jr., and Alexis are dismissed for lack of
personal involvement with leave to amend within 30 days to adequately
describe their personal involvement in the alleged violations. To
the extent the moving defendants' motion to dismiss has not been granted,
that motion is denied.