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KEE v. HASTY

United States District Court, S.D. New York


April 14, 2004.

CHARLES MICHAEL KEE, Plaintiff, -against- WARDEN D. HASTY, et al., Defendants

The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge

REPORT AND RECOMMENDATION

In this action purportedly brought under 42 U.S.C. § 1983 by pro se plaintiff Charles Michael Kee ("Kee"),*fn1 the Court faces three motions. First, Kee seeks a default judgment against certain defendants who, he claims, have failed to appear despite proper service. Second, those defendants who have appeared in the action seek judgment on the pleadings and/or summary judgment dismissing Kee's claims. And third, Kee seeks leave to file a Third Amended Complaint, adding new factual allegations, as well as certain new defendants.

For the reasons set forth below, I respectfully recommend that Kee's motion for a partial default judgment be denied, defendants' motion for judgment on the pleadings and/or summary judgment be granted in part and denied in part, and that Kee's motion to amend also be granted in part and denied in part. BACKGROUND

  A. Plaintiff's Claims

  Kee's allegations arise out of an incident that took place at the Metropolitan Correctional Center ("MCC") in Manhattan, on May 25, 2000. According to Kee's Second Amended Complaint and attached documents,*fn2 at approximately 1:00 p.m. on that date, Kee was escorted to his cell in handcuffs by defendant Correctional Officer Steven Linder ("Linder"), after the conclusion of a legal visit, to find that the cell had been searched, leaving his legal papers "all over the cell floor," and his package of cookies opened. (Second Amended Complaint ("Second Am. CompL") filed May 9, 2002 (Dkt. 19), attached May 30, 2000 letter to Warden Dennis Hasty ("Ltr. to Hasty") at 1.) Upon this discovery, Kee, while he was still handcuffed, threw the cookies and a container of milk out of his food slot, and asked to speak with an officer about the condition of his cell. (See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion [for] Summary [Judgment], dated January 26, 2003 ("Pl's 1/26/03 Mem."), at 2.) Kee alleges that, although he initially refused to have his handcuffs removed until he received an explanation as to why his food had been opened and his papers disturbed, he eventually did allow defendant Correctional Officer Garcia ("Garcia") to uncuff him, after which he proceeded to clean up his cell and do "legal work." (See id.)

  At about 3:00 p.m. on that same date, Kee claims to have heard a disturbance involving another inmate. Kee reacted to the disturbance by "yell[ing] to the staff on the tier . . .['] don't do that to him![']" (Ltr. to Hasty at 2.) At some point thereafter, certain of the defendants, allegedly on the order of defendant Captain Michael Gassaway ("Gassaway"), placed Kee in four-point restraints,*fn3 and did the same to the inmate who was the subject of the disturbance and to "another inmate who yelled." (Id.; see Pl's 1/26/03 Mem. at 3.) Kee alleges that, despite the fact that he regained his composure quickly and complained of pain from the restraints, he was kept in the restraints for approximately 22 hours. (See Second Am. Compl. Attach. C; Declaration of Mark Glover, M.D., dated July 19, 2002 (Dkt. 31) ("Glover Dec!."), ¶ 4 (Kee placed in restraints at 3:35 p.m. on May 25, 2000); Defendants Local Civil Rule 56.1 Statement ("Def's 56.1 Stmt") dated July 22, 2002, ¶¶ 25-26 (except for three-hour legal visit, Kee remained in restraints until 3:30 p.m. May 26, 2000).)

  As a result of the restraints, Kee claims to have sustained "back, neck, and wrist injuries along with extreme mental suffering." (Second Am. Compl. ¶ IV.) Thereafter, Defendants provided Kee with Motrin, but allegedly denied him physical therapy (See Second Am. Compl. ¶ IV), and intentionally served him meals that he could not eat, as they included meat, which was "not [part of his] . . . diet." (Second Am. Compl. Attach. C.)

  Kee's claims, liberally construed,*fn4 charge that: (1) by placing him in four-point restraints in response to his acts of throwing cookies and milk out of his cell and shouting his objection to the mistreatment of another inmate, and by keeping him in the restraints long after he had regained his self-control, defendants used excessive force against Kee in violation of the Eighth Amendment (See Second Am. Compl. ¶ IV-A); (2) by continuing to restrain Kee despite his complaints of pain, and by inadequately treating his injuries and failing to meet his dietary needs after releasing him from the restraints, defendants were deliberately indifferent to Kee's medical needs, another Eighth Amendment violation (see id. ¶¶ IV, IV-A); and (3) by confiscating certain of Kee's "belongings and legal materials," certain defendants deprived Kee of property without due process of law, in violation of the Fifth Amendment (See Second Am. Compl. ¶¶ IV, IV-A).

  Kee seeks declaratory, injunctive, and monetary relief on his claims. (See Second Am. Compl. ¶ IV-A; id. Attach. D.)

  B. Procedural History

  Kee filed his original Complaint in this action on December 20, 2000. (Dkt. 2.)*fn5 On March 30, 2001, the case was referred to me for general pretrial supervision and for a report and recommendation as to any dispositive motions. (Dkt. 4.) Kee filed an Amended Complaint on November 5, 2001 (Dkt. 10) ("Am. Compl."), and, with leave of Court, a Second Amended Complaint on May 9, 2002 (Dkt. 19). On January 24, 2002, Kee filed an application for the Court to request counsel. (Dkt. 13.) He renewed that application on August 28, 2002, and the Court denied it on January 7, 2003. (Dkt. 40.)

  1. Kee's Motion for Partial Default Judgment

  On May 29, 2002, which was 20 days after filing his Second Amended Complaint, Kee moved for a default judgment against certain defendants — Lieutenant James Williams ("Williams"), Special Investigative Agent Robert Parrish ("Parrish"), Correctional Officers Garcia ("Garcia") and Victor Jean ("Jean"), and unidentified members of the MCC "Medical Department Staff." Despite the timing, however, the basis of Kee's motion for a default against these defendants was not that they had failed to answer the Second Amended Complaint within 20 days of service of that pleading (See Fed.R.Civ.P. 12(a)(1)(A)), but rather that they had failed to respond in timely fashion to KEE'S first Amended Complaint, which purportedly was served on them by the United States Marshal on January 10, 2002. (See Plaintiff's Affirmation in Support of Motion for Default Judgment, dated May 29, 2002 (Dkt. 21) ("Pl's Default Mot."), at ¶ 2; Amended Summons, dated January 10, 2002 (attached to Pl.'s Default Mot.)*fn6 On behalf of the purportedly defaulting defendants, the U.S. Attorney's Office opposed Kee's default motion on various grounds. (See Memorandum of Law in Support of Defendants' Motion for Summary Judgment, dated July 19, 2002 (Dkt. 28) ("Defs.' Mem."), at 20-21.) Kee replied on October 16, 2002. (See Plaintiff's Affirmation in Opposition to Defendants' Motion for Summary Judgment, dated October 16, 2002 ("Pl's 10/16/02 Mem.").)*fn7

  2. Defendants' Motion for Judgment on the Pleadings and/or for Summary Judgment

  After Kee served his motion for default as against certain defendants, all of the defendants who had appeared in the action as of July 26, 2002 — including Parrish and Jean (see n. 6, supra) — moved for judgment on the pleadings or, alternatively, for summary judgment dismissing the claims against them. (See Defendants' Notice of Motion for Judgment on the Pleadings and/or for Summary Judgment, dated July 22, 2002 ("Defs' Notice of Motion") (Dkt. 27).) The motion was based, inter alia, on the doctrines of sovereign and qualified immunity, on Kee's purported failure to allege the nature of individual defendants' personal involvement in the claimed constitutional violations, and on Kee's failure to plead and/or demonstrate the requisite elements of his claims. (See Defs' Mem at 2-3; Dkt. 27-32.) Kee opposed this motion on October 16, 2002 (See Pl's 10/16/02 Mem.; Notice of [] Opposition [to] Government's [Motion for Judgment] on [the] Pleadings and/or for Summary Judgment, dated October 16, 2002), and Defendants replied on December 23, 2002 (See Reply Memorandum of Law in Support of Defendants' Motion for Summary Judgment, dated December 13, 2002 (Dkt. 39) ("Defs.' Reply Mem."), at 3-9).

  3. Kee's Motion for Leave To File a Third Amended Complaint

  At the same time that he filed his reply on his motion for a partial default judgment and his opposition to defendants' motion for judgment on the pleadings and/or summary judgment, Kee also sought leave to file a Third Amended Complaint. (See Motion [for] Leave to File Amended Complaint Pursuant to Fed.R.Civ.P. [] 15(a) and [Affirmation] in Support, dated October 16, 2002 ("Pl.'s Mot. to Amend").) This motion to amend was supported by a new proposed pleading, which was handwritten on a form apparently intended for use by civil rights litigants in the Central District of California. (See U.S. District Court Central District of California Civil Rights Complaint Pursuant to Bivens v. Six Unknown Agents, dated October 16, 2002 ("Proposed Third Am. Compl.").)

  Defendants opposed the motion to amend on December 23, 2002, in conjunction with their reply on their motion for judgment on the pleadings and/or summary judgment. (See Defs.' Reply Mem.) On January 26, 2003, Kee submitted papers which, as discussed further below, not only replied to defendants' arguments on his motion to amend, but also supplemented his earlier submissions opposing defendants' motion. (See Pl.'s 1/26/03 Mem. at 4; see also transcript of April 7, 2003 Case Management Conference ("4/7/03 Tr."), at 2 (accepting Kee's January 26, 2003 submission as, inter alia, Kee's reply on the motion to amend).) 4. Kee's Supplemental Submission

  As noted above, Kee's January 26, 2003 supplemental submission was in the nature of both a reply on his motion to amend and a sur-reply on defendants' motion for judgment.*fn8 Among other things, Kee used this submission to address a prison videotape — showing several minutes of the incident at issue — that had been belatedly produced by defendants. Defendants had submitted this videotape to the Court in connection with their alternative motion for summary judgment (See Reply Declaration of Les Owen, dated December 13, 2002 ("Owen Reply Decl."), Ex. A), but Kee apparently did not receive a copy of the tape until after he had submitted his October 16, 2002 opposition papers. (See Dkt. 41; see also letter from Kee to Pro Se Clerk, dated January 26, 2003 (noting "delay of filing due to prison's failure to release video tape and documents").) Accordingly, Kee presented argument about the tape for the first time in his January 26 submission. (See Pl.'s 1/26/03 Mem. at 3.)

  DISCUSSION

 I. KEE'S MOTION FOR PARTIAL DEFAULT JUDGMENT

  A. Applicable Legal Standards

  Rule 55(a) of the Federal Rules of Civil Procedure provides that the Clerk of the Court shall enter a default against a party who "has failed to plead or otherwise defend" an action in accordance with the applicable requirements, including timeliness. Fed.R.Civ.P. 55(a); see also Fed.R.Civ.P. 12(a)(1) (setting forth time limits to answer a complaint). Once the default has been entered, upon application of the party "entitled to a judgment by default," the Court may enter a default judgment against the defaulting party. Fed.R.Civ.P. 55(b).

  The decision to grant a motion for a default judgment lies in the sound discretion of the trial court. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). A default judgment, however, cannot be entered unless the Court has "jurisdiction over the party against whom the judgment is sought, which also means that [the defendant] must have been effectively served with process." Wright, Miller & Kane, Federal Practice and Procedure Civil 2d § 2682.

  Further, a default judgment is warranted only where a plaintiff establishes that he has been prejudiced by the defendant's default. See Cruz v. Coach Stores, No. 96 Civ. 8099 (JSR), 1998 WL 812045, at *3 (S.D.N.Y. Nov. 18, 1998) (default judgment "not remotely warranted" where, inter alia, plaintiff had failed to establish prejudice resulting from defendant's lateness in answering) (citation omitted). Delay, standing alone, will not suffice to show prejudice, see Enron Oil Corp., 10 F.3d at 98; rather, a plaintiff must show "that delay will result in the loss of evidence, create increased difficulties of discovery, or provide greater opportunity for fraud and collusion." Davis v. Musler, 713 F.2d 907, 916 (2d Cir. 1983) (quoting Wright, Miller & Kane at § 2699) (internal quotation marks omitted)). Our judicial system does not favor default judgments, and, if a trial on the merits is possible despite the defendant's default, e.g., where a defendant answered a complaint belatedly, such a means of disposition is preferred. See Campbell v. Shenendehowa Cent. Sch. Dist., No. 93 Civ. 227, 1993 WL 133726, at *2 (N.D.N.Y. Apr. 23, 1993) (noting, in denying default motion where defendants had answered complaint belatedly, that courts disfavor defaults) (citing Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981)). The preference is for courts to "reach judgments on the merits and not by way of default judgments." Shah v. N.Y.S.tate Dep't of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999) (citations omitted). Further, a plaintiff is not entitled to a default judgment, regardless of whether the defendant has answered the complaint, if the complaint does not state a viable legal claim for relief. See, e.g., CPF Premium Funding, Inc. v. Ferrarini, No. 95 Civ. 4621 (CSH), 1997 WL 158361, at *14 (S.D.N.Y. Apr. 3, 1997) (The Court "may deny an application for entry of a default when the complaint fails to state a claim against the defaulting defendant.").

  B. The Defendants Against Whom Default Judgment Is Sought

  1. Parrish and Jean

  Kee is correct that, as of the date of his default motion, defendants Parrish and Jean had not answered his Amended Complaint. (See Pl.'s Default Mot. ¶ 3; Defs.' Am. Answer at 1 (listing defendants on whose behalf answer was filed).) Prior to filing his motion, however, Kee filed a Second Amended Complaint, which those defendants did answer, albeit belatedly. (See Second Am. Answer. at 1 (naming Parrish and Jean among answering defendants).) Indeed, Parrish and Jean have now joined in defendants' motion to dismiss Kee's claims, either on the pleadings or on summary judgment. (See Defs.' Notice of Motion at 1 (naming Parrish and Jean among moving defendants).)

  In support of his default motion, Kee asserts only that "[t]he time to respond to [the Amended Complaint] has expired, and the defendants [have] not answered or made a motion," and that "[t]he defendants are not infants or incompetent people, nor [are they] serving in the United States Armed Forces." (Pl's Default Mot. ¶¶ 3-4.) Although these statements, when made, were apparently correct as to defendants Parrish and Jean, Kee has made no attempt to demonstrate that these defendants' failure to answer the Amended Complaint — or to file a timely response to the Second Amended Complaint — has negatively affected the evidence or Kee's ability to conduct discovery in this case, or has enabled the defendants to engage in fraud or collusion. Cf. Davis, 713 F.2d at 916 (granting defendants' motion to set aside default judgment where, although "some delay will result," plaintiff, by failing to allege effects regarding evidence, discovery or fraud, did not establish prejudice). Given that any delay in these defendants' appearance is minor when the case is viewed as a whole, and that policy interests strongly favor the resolution of claims on the merits, I recommend that the motion for default judgment against these defendants be denied.

  2. Garcia

  Although the Marshal's return of service suggests that defendant Garcia was served with process, defendants contend that this particular defendant has never been sufficiently identified to enable effective service or a response. (See Defs.' Mem. at 20 (stating that Kee "has not provided sufficient identifying information, such as Garcia's first name or any actions Garcia allegedly took concerning [Kee], and the BOP consequently has been unable to identify who[m] [Kee] purports to sue").) Having heard this argument, Kee now appears to concede that the BOP's inability to identify Garcia has precluded effective service upon him, and Kee has thus requested that his motion for a default judgment be stayed as to Garcia "until he can be properly identified." (See Pl's 10/16/02 Mem. at ¶ 48.)

  Where, however, attempted service has been ineffective, the Court does not have jurisdiction over the defendant and should not entertain a default motion nor stay such a motion pending adequate service. Rather, the default motion should simply be denied. See, e.g, American Inst. of Certified Pub. Accountants v. Affinity Card, 8 F. Supp.2d 372, 375 (S.D.N.Y. 1998) (vacating default judgment where plaintiff had failed to effectuate proper service because the court never had jurisdiction over the defendant to allow entry of the judgment); Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Forman 635 Joint Venture, No. 94 Civ. 1312 (LLS), 1996 WL 272074, at *3 (S.D.N.Y. May 21, 1996) (default judgment may not be entered where the service of process, on which it rests, was ineffective). Here, if Kee is, at some point, able to identify Garcia sufficiently to effectuate valid service, then Kee's pleading should be amended at that time to reflect the identifying information; service should be made; and Garcia should be given a fair opportunity to respond to any claims against him. As there does not appear to be any present dispute that any prior service on Garcia was ineffective, I recommend that Kee's default motion as to this defendant be denied.

  3. Williams

  Defendants assert that Williams has not appeared in this action because he has been on active duty overseas in the U.S. Air Force and is on leave from the BOP. (See Defs.' Mem. at 20-21; Declaration of Les Owen, dated July 19, 2002 (Dkt. 32) ("Owen Decl."), ¶ 10.) Therefore, Defendants request that, if this action is not dismissed in its entirety, it be stayed as to Williams, pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. App. § 521, which protects service members who have not appeared in an action against default judgments. (See Defs.' Mem. at 20-21.) That section provides, in pertinent part:

In an action covered by this section in which the defendant is in military service, the court shall grant a stay of proceedings for a minimum period of 90 days under this subsection upon application of counsel, or on the court's own motion, if the court determines that — (1) there may be a defense to the action and a defense cannot be presented without the presence of the defendant; or
(2) after due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.
50 U.S.C. App. § 521(d); see also Conroy v. Aniskoff, 507 U.S. 511, 516 n.9 (1993) (noting that Section 521 provides for stays of legal proceedings against persons engaged in military service).

  The fact that Williams is on active duty overseas materially affects his ability to conduct a defense in this case. See 59 U.S.C. App. § 521(d)(1); Franklin v. Police Officer Balestrieri, No. 00 Civ. 5883 (BJS) (DFE), 2002 WL 54600, at *1 (S.D.N.Y. Jan. 15, 2002) (finding that activation of defendant Navy reservist officer to military duty materially affected his ability to conduct his defense); see also U.S. v. Kaufman, 453 F.2d 306, 308-309 (2d Cir. 1971) ("The purpose of the Soldiers' and Sailors' Civil Relief Act is to prevent default judgments from being entered against members of the armed services in circumstances where they might be unable to appear and defend themselves."). Further, Kee has not presented any evidence that Williams is not overseas on active duty, see 59 U.S.C. App. § 521(b)(1); Kaufman, 453 F.2d at 309 (noting that before a plaintiff can obtain a default judgment against a person in the military he must file an affidavit with the court stating that the individual being sued is not in the service), nor does he appear to object to the Court's granting Defendants' request for a stay. (See Pl's 10/16/02 Mem. ¶ 48 ("This action should also be stayed as to Lt. Williams who is alleged to be overseas on active duty.").)*fn9 For these reasons, I recommend that Kee's motion for a default judgment as to defendant Williams be denied, and that this action be stayed as to him, pending his release from Air Force duty. I further recommend that counsel for defendants be directed to notify Kee and the Court of any changes in Williams's military duty status. See Franklin, 2002 WL 54600, at *1 (directing Assistant Corporation Counsel to update court and plaintiff as to status of defendant officer's military duty).

  4. Medical Department Staff

  Kee also seeks a default judgment as to the defendant identified only as "Medical Department Staff." (See Pl's Default Mot.) Defendants argue that, by failing in his Second Amended Complaint to name any members of that staff who allegedly were involved in a violation of his constitutional rights, Kee has failed to state a claim against any such staff members. (See Defs.' Mem. at n.1.)

  Defendants are correct that, under Bivens, a plaintiff must identify defendants by name and demonstrate the nature of their individual liability in order to state a claim for excessive force. (See generally discussion infra at 24-25.) Therefore, Kee is not entitled to a default judgment against the "Medical Department Staff," regardless of whether the Marshal purportedly served that entity with process and even though it has not, to date, appeared. See, e.g., CPF Premium Funding, Inc., 1997 WL 158361, at *14 (The Court "may deny an application for entry of a default when the complaint fails to state a claim against the defaulting defendant."); see also Hernandez v. Coughlin, No. 83 Civ. 8882 (RWS), 1984 WL 211, at *2 (S.D.N.Y. Apr. 17, 1984) (granting defendants' motion to dismiss where plaintiff, inter alia, "alleges that his requests [to defendant `Medical Staff for attention] were denied, but he does not specify to whom those requests were made").

  Further, as Kee has not named the "Medical Department Staff as a defendant in his Proposed Third Amended Complaint (instead naming as defendants two individuals who were apparently members of that staff), it appears that Kee wishes to dismiss his claim voluntarily against the staff as an entity. Accordingly, I recommend that Kee's motion for a default judgment as to defendant Medical Department Staff be denied, and I further recommend that the "Medical Department Staff be dropped as a named defendant in this case.

 II. DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND/OR SUMMARY JUDGMENT

  A. Kee's Claims for Declaratory and Injunctive Relief

  Although not raised in defendants' motion, the Court notes that, since the date when Kee filed this action, he has been transferred out of the MCC,*fn10 and, thus, he no longer has viable claims for declaratory or injunctive relief with respect to any improper practices to which he was allegedly subjected at that facility. Regardless of whether defendants have raised this argument, the Court may consider it, see Prins v. Coughlin III, 76 F.3d 504, 506 (2d Cir. 1996), and, logically, it should be considered before otherwise focusing on the merits of defendants' motion. For a federal court to retain jurisdiction over a case, an actual controversy must exist "at all stages of review, not merely at the time the complaint is filed." Prins, 76 F.3d at 506 (quoting Preiser v. Newkirk, 422 U.S. 395, 402 (1975)) (where inmate had been transferred to third facility, his request for injunctive relief against first and second facilities was moot). "A case is deemed moot where the problem sought to be remedied has ceased, or where there is `no reasonable expectation that the wrong will be repeated.'" Id. (quoting U.S. v. W.T. Grant Co., 345 U.S. 629, 632 (1953)). Under this reasoning, an incarcerated plaintiff's transfer out of the prison facility at which the cause of action arose moots his claim against that facility, insofar as it seeks injunctive and declaratory relief. See Young v. Coughlin, 866 F.2d 567, 568 n.1 (2d Cir. 1989); accord Williams v. Goord, 142 F. Supp.2d 416, 420 n.2 (S.D.N.Y. 2001); Graham v. Perez, 121 F. Supp.2d 317, 325 (S.D.N.Y. 2000). An action for monetary damages, however, is not mooted by a transfer. Prins, 76 F.3d at 506.

  In this case, Kee seeks declaratory and injunctive relief, as well as monetary damages. Specifically, Kee requests that, in addition to awarding him compensatory and punitive damages, the Court: (1) declare that Defendants "violated the U.S. Constitution" (Second Am. Compl. at ¶ IV-A); and (2) enjoin Defendants "from using physical force against [P]laintiff except when necessary; from [confiscating]. . . personal property and legal material from [P]laintiff; from [engaging in] retaliation [against Plaintiff in any]. . . form[]; and from abusing authority over [P]laintiff" (Second Am. Compl. Attach. D). Since Kee is no longer being held at the MCC, there is "no reasonable expectation" that alleged wrongful conduct directed toward him will be repeated. Therefore, to the extent that they request prospective relief, Kee's claims are moot, and I recommend that they be dismissed on that ground. I further recommend that Kee not be granted leave to plead claims for declaratory or injunctive relief in a further amended pleading,*fn11 as such an amendment would be fufile.

  B. Kee's Claims Against Defendants in Their Official Capacities

  To the extent Kee has asserted claims against the defendants in their official capacities, defendants move to dismiss such claims on the pleadings, on the ground that, under the doctrine of "sovereign immunity," the Court lacks subject matter jurisdiction over such claims. (See Defs.' Mem. at 4.)

  Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), affords a plaintiff a private right of action against federal officials who engaged in unconstitutional conduct in their individual capacities. See Armstrong v. Sears, 33 F.3d 182, 185 (2d Cir. 1994). Suits against officers of the U.S. for actions taken in their official capacities, however, are considered suits against the U.S., see Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 509-10 (2d Cir. 1994), and under the doctrine of sovereign immunity, the U.S. is generally immune from suit unless it has consented to be sued, see FDIC v. Meyer, 510 U.S. 471, 476-79 (1994). With respect to claims like those asserted here, i.e., claims for money damages arising from alleged constitutional torts, the U.S. has not waived its sovereign immunity. See Meyer, 510 U.S. at 476-79; Keene Corp. v. U.S., 700 F.2d 836, 845 n.13 (2d Cir. 1983).

  Accordingly, Kee's constitutional tort claims, insofar as he brings them against defendants in their official capacities, are barred by the doctrine of sovereign immunity, and should be dismissed for lack of subject matter jurisdiction. See, e.g, Sule v. Warden, No. 94 Civ. 2242 (DLC), 1995 WL 115694, at *2 (S.D.N.Y. Mar. 17, 1995) (sovereign immunity barred plaintiff from bringing constitutional claims against warden of the MCC in his official capacity). Further, Kee's motion to amend should be denied to the extent that it seeks to assert claims against defendants in their official capacities.

  C. Kee's Claims Against Defendants in Their Individual Capacities

  1. Applicable Legal Standards

  a. Judgment on the Pleadings

  In deciding a Rule 12(c) motion for judgment on the pleadings, the Court applies the same standards it uses for a Rule 12(b)(6) motion to dismiss. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); General Elec. Capital Corp. v. Domino's Pizza Inc., No. 93 Civ. 5070 (PKL), 1994 WL 256776, at *2 (S.D.N.Y. June 2, 1994) (noting that the same standards are employed for deciding a Rule 12(c) motion as a motion made pursuant to Fed.R.Civ.P. 12(b)(6)) (citation omitted). That is, the Court must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff. Burnette, 192 F.3d at 56 ("In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the non-moving party); see Alien v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). The issue is not whether the plaintiff will prevail ultimately, but whether the claimant is entitled to offer more evidence in support of the claims. Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). A claim may not be dismissed under Rule 12(c) unless "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003) (internal quotation marks and citations omitted). Further, where, as here, a plaintiff is proceeding pro se, the Court must construe the pleadings liberally. Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002), see Hughes v. Rowe, 449 U.S. 5, 10 (1980) (apro se party's pleadings must be liberally construed in favor of that party and are held to "less stringent standards that the formal parties drafted by lawyers") (internal quotation and citation omitted); Farid v. Ellen, No. 01 Civ. 8292 (PKC), 2003 WL 23018805, at *1 (S.D.N.Y. Dec. 23, 2003) (liberal interpretation of a pro se plaintiff's pleading on a Rule 12(c) motion particularly appropriate where the plaintiff alleges a civil rights violation).

  The mandate that a pro se plaintiff's complaint be construed liberally also makes it appropriate for the Court to look to the factual allegations in the plaintiff's opposition materials as a supplement to the factual allegations in the complaint. See Idelicato v. Suarez, 207 F. Supp.2d 216, 217 (S.D.N.Y. 2002) (where a plaintiff is proceeding pro se, the court may, in deciding a Rule 12(c) motion, look beyond the complaint to all the pleadings, including plaintiff's opposition papers); Roland v. Murphy, 289 F. Supp.2d 321, 322 (E.D.N.Y. 2003) (accepting the allegations in a pro se plaintiff's opposition materials for the purposes of deciding a Rule 12(c) motion); see also Johnson v. Wright, 234 F. Supp.2d 352, 356 (S.D.N.Y. 2002); Burgess v. Goord, No. 98 Civ. 2077 (SAS), 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan 26, 1999). Furthermore, on a motion to dismiss, the Court may consider any written instrument attached to the complaint as an exhibit, any statements or documents incorporated by reference, and documents on which the plaintiff relied while drafting his pleadings. See Idelicato, 207 F. Supp.2d at 217 (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)); General Elec. Capital Corp. v. Domino's Pizza Inc., No. 93 Civ. 5070 (PKL), 1994 WL 256776, at * 2 (S.D.N.Y. June 2, 1994) (noting that the same standards are employed for deciding a Rule 12(c) motion as a motion made pursuant to Fed.R.Civ.P. 12(b)(6), and that in deciding either motion, consideration may be based on the factual allegations in the complaint and to documents attached thereto or incorporated therein by reference); see Daniels v. City of N.Y., No. 03 Civ. 0809 (GEL), 2003 WL 22510379, at *2 (S.D.N.Y. Nov. 3, 2003) (on a motion to dismiss, considering documents attached to pro se plaintiff's civil rights complaint as incorporated therein by reference).

  b. Summary Judgment

  Rule 12(c) of the Federal Rules of Civil Procedure provides that:

[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
In this case, defendants have submitted, and the Court has not excluded, a considerable amount of evidence outside the pleadings on the question of defendants' potential liability. (See, e.g., Declaration of Dennis Hasty ("Hasty Decl."), dated July 19, 2002 (Dkt. 29); Declaration of Courtney Shepard ("Shepard Decl."), dated July 19, 2002 (Dkt. 30); Glover Decl.; Owen Decl.) Kee has had an opportunity to review and respond to this additional evidence. (See Pl.'s 56.1 Stmt.; Pl's 1/26/03 Mem.; Pl's 1/25/03 Decl.) Therefore, to the extent Kee's claims survive a challenge on the pleadings, it would be appropriate for the Court to reach defendants' alternative motion for summary judgment pursuant to Rule 56. Under Rule 56(c), a motion for summary judgment may be granted when the parties' sworn submissions show that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986); Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996). The moving party bears the burden of showing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

  In considering a summary judgment motion, the Court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Further, where the party opposing summary judgment is proceeding on a.pro se basis, the Court must read that party's papers liberally and interpret them "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks and citation omitted). Even apro se plaintiff, however, cannot withstand a motion for summary judgment by relying merely on the allegations of a complaint. See Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996). Rather, when confronted with evidence of facts that would support judgment in the defendant's favor as a matter of law, the plaintiff must come forward with evidence in admissible form that is capable of refuting those facts. See Fed.R.Civ.P. 56(e); see also Jermosen v. Coughlin, 877 F. Supp. 864, 867 (S.D.N.Y. 1999) (pro se plaintiffs must make proper evidentiary showing in order to defeat summary judgment). Overall, the Court "cannot try issues of fact; it can only determine whether there are issues to be tried." Am. Mfrs. Mut. Ins. Co. v. Am. Broad.-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967); accordSutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995). Only where there is no genuine issue of material fact, viewing the evidence in the light most favorable to the nonmoving party, is summary judgment appropriate. See Liberty Lobby, 477 U.S. at 248; Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

  2. Excessive Force Claim

  Kee has alleged that several of the defendants engaged in the use of excessive force against him, in violation of the Eighth Amendment's prohibition against the infliction of cruel and unusual punishment. The Eighth Amendment*fn12 is violated by unnecessary and wanton inflictions of pain and suffering. See Whitley v. Albers, 475 U.S. 312, 320 (1986).

  To establish an Eighth Amendment excessive force claim, an inmate must satisfy both subjective and objective tests. See Hudson v. McMillan, 503 U.S. 1, 7-8 (1992); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000); McCrory v. Beldon, No 01 Civ. 0525 (MHD), 2003 WL 22271192, at *5(S.D.N.Y. Sept. 30, 2003). To satisfy the subjective test, the inmate must show that the prison officials "had a `wanton' state of mind when they were engaging in the alleged misconduct." Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir. 1994) (citing Hudson, 503 U.S. at 7). Whether such a showing has been made is determined by balancing four factors: (1) the need for the application offeree; (2) the relationship between that need and the amount offeree used; (3) the threat reasonably perceived by the responsible officials; and (4) any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S. at 321). The absence of a serious injury is a relevant, but not dispositive, factor in this analysis. See id. Ultimately, the court's decision "turns on `whether force was applied in a good faith effort to maintain discipline or maliciously and sadistically for the very purpose of causing harm.'" Whitley, 475 U.S. at 320-21 (quoting Johnson v. Glick. 481 F.2d 1028, 1033 (2d Cir. 1973)).

  To satisfy the objective test, the inmate must show that the force that was applied was "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Setter, 501 U.S. 295, 298 (1991)). The objective component may include allegations of the type and extent of force used, the nature and seriousness of any injury that resulted, and other indicia of the "excessiveness" of the force. Mitchellv. Keane, 974 F. Supp. 332, 340-41 (S.D.N.Y. 1997) (citing Branham v. Meachum, 77 F.3d 626, 628-29 (2d Cir. 1996)), aff'd, 175 F.3d 1008 (Table) (2d Cir. 1997). This inquiry is "context specific, turning upon contemporary standards of decency." Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999) (quoting Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999) (internal quotation omitted)). Furthermore, although "a de minimis use of feree will rarely suffice to state a constitutional claim," Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (citation omitted), a plaintiff "need not prove `significant injury' to make out an excessive force claim, and, thus, the fact that he suffered only minor injuries does not warrant dismissal." Griffen, 193 F.3d at 92.

  Where a prison disturbance was in progress at the time of the alleged constitutional violation, "wide-ranging deference" must be accorded to the actions of the prison officials in quelling the disturbance. See Rosario v. Coughlin, No. 88 Civ. 56, 1995 WL 57417, at *7 (N.D.N.Y. 1995) (citing Whitley, 475 U.S. at 320-21). If, however, the disturbance was already under control when the alleged violation occurred, the Court need not be as deferential. See id. (citations omitted).

  Finally, to be liable under Bivens for an Eighth Amendment violation such as the use of excessive force, a defendant must: (1) have been personally involved in the violation of the plaintiff's rights; (2) have created or acquiesced in a policy or practice of poor training or supervision; or (3) have otherwise acted recklessly in managing his or her subordinates. See Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987) (citing, inter alia, Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1999)). Thus, to establish any type of claim under Bivens, a plaintiff must allege facts showing, inter alia, that each named defendant denied him a right secured by the Constitution. See Smith v. Menafee, No 00 Civ. 2521 (DC), 2002 WL 461514, at *4 (S.D.N.Y. Mar. 26, 2002); Lee v. Carlson, 645 F. Supp. 1430, 1436 (S.D.N.Y. 1986), aff'd, 812 F.2d 712 (2d Cir. 1987). Conclusory accusations regarding a defendant's personal involvement in the alleged violation, standing alone, are not sufficient, see Barbera, 836 F.2d at 99, and supervisors cannot be held liable based solely on the alleged misconduct of their subordinates, see Ellis v. Blum, 643 F.2d 68, 85 (2d Cir. 1981) (citations omitted).

  a. Kee Has Not Pleaded the Personal Involvement Necessary To State an Excessive Force Claim Against Defendants Barry, Maiden, Ciancioso, Desmond, Rivera, Lett, Parrish, Cole, and Jean

  Neither the Second Amended Complaint nor the materials attached thereto contain any allegation that defendants Barry, Maiden, Ciancioso, Desmond, Rivera, Lett, Parish, Cole, and/or Jean personally engaged in any purported use of excessive force. Where allegations merely assert violations by "defendants" or "all defendants" (See Second Am. Compl., ¶¶ IV, IV-A), they are insufficient to sustain a claim that must be predicated on personal involvement. See, e.g., Barbera, 836 F.2d at 99 (dismissing Bivens complaint where plaintiff failed to plead a cognizable claim, in that he did not allege any personal involvement by the defendant supervisor); Grullon v. Reid, No. 97 Civ. 7616 (RWS), 1999 WL 436457, at * 7 (S.D.N.Y. June 24, 1999) (dismissing claims where plaintiff, in a Bivens action, failed to establish specific facts to show each defendant's personal involvement in the alleged constitutional violations); Hendrickson v. U.S. Atty Gen., 91 Civ. 8135 (LMM), 1994 WL 23069, at *3 (S.D.N.Y. Jan 24) ("In a Bivens action . . . a complaint that fails to allege the direct and personal responsibility on the part of any of the named defendants . . . must be dismissed."), aff'd without opinion, 40 F.3d 1236 (Table) (2d Cir. 1994).

  For this reason, the excessive force claim pleaded in the Second Amended Complaint should be dismissed as against these particular defendants. I recommend, however, that any such dismissal be without prejudice to Kee's right to amend his pleading further to allege facts capable of supporting such a claim, if he is able to do so. In this regard, it appears that Kee's Proposed Third Amended Complaint in fact adds allegations capable of supporting an excessive force claim against most of these defendants (specifically, Barry, Maiden, Ciancioso, Desmond, Rivera, Lett, Parrish, and Cole), and that this amendment would not be fufile and should thus be allowed. (See discussion infra at 50-52, regarding Kee's motion to amend.) It also appears, as discussed further below, that Kee's proposed amendment would not be sufficient to support an excessive force claim against defendant Jean (See discussion infra at 54-55), and I therefore recommend that this claim be dismissed with prejudice as to this defendant.*fn13

  b. The Excessive Force Claim Against Defendants Hasty, Shepard, Brown, Linder, Ortiz, and Gassaway Is Adequately Pleaded, and Summary Judgment Against Those Defendants Should Be Denied

  i. Adequacy of the Pleading

  Kee claims that defendants violated his Eighth Amendment right to freedom from cruel and unusual punishment by subjecting him to the excessive use offeree in two ways: first, by placing him in four point restraints, in response to his acts of throwing cookies and milk out of his cell and shouting his objection to officers' treatment of another inmate, and, second, by keeping him in the restraints for 22 hours, despite his apparent self-control. (See Second Am. Compl. ¶ IV-A; Ltr. to Hasty; Pl's 1/26/03 Mem. at 2-4.) Defendants concede that defendants Hasty, Shepard, Brown, Linder, and Ortiz were personally involved with placing Kee into restraints and/or in keeping him restrained. (See Defs.' Mem. at 6.) Thus, the excessive force claim against these defendants should not be dismissed on the pleadings for failure to allege defendants' personal involvement in the claimed violation.

  As for defendant Gassaway, in the body of the Second Amended Complaint, Kee makes no allegations regarding Gassaway's personal involvement in any use of excessive force, but there are two statements in the materials attached to Kee's Second Amended Complaint that implicate Gassaway in such a violation.

  The first statement is contained in a letter from Kee to Gassaway, dated May 30, 2000, in which Kee writes, inter alia, "You told me you [tied] me down for throwing cookies on the floor and anyone who [does] that will be four-pointed. . . .[I]t is unconstitutional to four point someone for something other than body damage to self or others, or destroying property." (Letter from Kee to Captain Michael Gassaway, dated May 30, 2000, attached to Second Am. Compl. ("Ltr. to Gassaway").) The second statement is contained in a letter from Kee to Warden Hasty (another named defendant in this action), dated May 30, 2000, in which Kee writes, inter alia, "This four-point situation is from Captain [Gassaway]. . . . He said . . . people who throw food out will be four-pointed. . . . Please tell me about why you ordered me on four point restraints through the Captain. . . .[W]hy for 24 hrs.? Each time I was let up for the bathroom I was calm, even before I was strap[ped] down." (Ltr. to Hasty.)

  Liberally construed and accepted as true, these statements are adequate to plead a claim of excessive force by Gassaway. By accusing defendant Gassaway of having placed him (or having directed that he be placed) in four-point restraints, Kee has adequately charged that Gassaway was personally involved in the claimed violation. Williams, 781 F.2d at 323 (personal involvement is pleaded where there is an allegation that official directly participated in, or supervised, a constitutional infraction).

  Further, as to the requirements of an excessive force claim against these defendants, whose personal involvement has been sufficiently alleged, both the subjective and objective factors have been satisfactorily pleaded. As to the subjective requirement of "wantonness," by asserting that there was no legitimate reason to place or keep him in restraints, Kee appears to allege that defendants had an ulterior, illegitimate motive for doing so. Liberally construed, Kee's charges that defendants did not need to place him in restraints so as to protect "[him]self or others," or to prevent property damage (Ltr to Gassaway), suggest that there was no useful purpose for the restraints other than to cause him pain. See, e.g., Davidson, 32 F.3d at 30 (subjective standard satisfied where plaintiff alleged that guards were improperly motivated when they put handcuffs on plaintiff too tightly under the circumstances so as to cause injury); Mitchell, 974 F. Supp. at 340-41 (plaintiff satisfied subjective standard by pleading that the defendants used unnecessary force where plaintiff claimed that although he had already been subdued, officers continued to unnecessarily restrain him for no useful purpose other than to inflict pain).

  For the objective requirement, Kee has alleged injuries as a result of the restraint, e.g., to his back, neck and wrist (See Second Am. Compl. at ¶¶ IV, IV-A; id. Attach. C), indicating that the force applied was "sufficiently serious" to satisfy the pleading requirement. See, e.g., Davidson, 32 F.3d at 30 (allegation of injury to the wrist and ankles resulting from leg irons and handcuffs sufficiently stated the objective component of the excessive force claim); Mitchell, 974 F. Supp. at 340 (allegation that plaintiff suffered bruising and back pain as a result of improper use of shackles was sufficient harm to satisfy the objective prong of the excessive force standard).

  Given defendants' concessions regarding the personal involvement of Hasty, Shepard, Brown, Linder, and Ortiz; the above statements that Kee claims were made by Gassaway; and the fact that Kee has pleaded both deliberate wrongdoing and more than de minimis injury, I recommend that the Court deny defendants' motion for judgment on the pleadings as to Kee's excessive force claim against each of these defendants.

  ii. Summary Judgment

  I further recommend that the Court deny defendants' alternative motion for summary judgment dismissing the excessive force claim against defendants Hasty, Shepard, Brown, Linder, Ortiz, and Gassaway.

 

(a) Material Issues of Fact Exist Regarding the Subjective Component of the Claim
  As to the subjective component of Kee's excessive force claim, the parties have presented conflicting evidence to the Court regarding whether the particular circumstances of Kee's restraint could support a jury finding of an Eighth Amendment violation. First, the parties have offered differing accounts of the events leading up to Kee's placement in four-point restraints. Defendants trace the decision to place Kee in restraints to Kee's original act of throwing cookies. That is, they claim that Kee "created the disturbance in the MCC . . .[by throwing] cookies out of his cell [which struck] a BOP staff member" (Defs.' Reply at 4-5), and argue that Kee had to be forcibly restrained "in order to provide for the security of other inmates and staff and to prevent any further escalation of the disturbance" (Defs.' Mem. at 12; see also Hasty Decl. ¶ 8; Shepard Decl. ¶¶ 5, 6*fn14.) Kee, however, disputes defendants' representation that he "created" the disturbance, stating that his throwing of cookies was a "totally separate incident" from the disturbance that resulted in his restraint. (Pl.'s 1/25/03 Decl. ¶ 4.)

  Second, although defendants argue that it is undisputed that Kee "refused to stop [his] behavior after attempts were made to avoid a confrontation by asking [him] to voluntarily comply" (Defs.' 56.1 Stmt. ¶ 11; see Shepard Decl. ¶ 7), Kee alleges that defendants' contention that he was "ordered . . . to stop disruptive behavior and [that he]. . . did not comply with the request nor the order . . . is false" (Pl.'s 1/25/03 Decl. ¶ 2). According to Kee, the continued use of feree was "completely needless," since he "was locked in his cell[,] obeyed the one order given[,]. . . was in control[,] and did what [the] staff told him." (Pl's 1/26/03 Mem. at 3; see also Pl.'s 1/25/03 Decl. ¶¶ 2, 6.)

  These contradictory accounts of the events leading up to Kee's placement in four-point restraints give rise to triable issues of fact. See Griffen v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999) (dismissal of an excessive force claim was inappropriate where there were genuine issues of material fact concerning what transpired after plaintiff was handcuffed and guards used force against him); Crawfordv. Braun, No. 99 Civ. 5851 (RMB) (JCF), 2001 WL 127306, at *4 (S.D.N.Y. Feb. 9, 2001) (summaryjudgment denied because, inter alia, although "defendants present a strong case for finding that they applied only the force necessary to restrain [plaintiff]. . .[i]f the jury were to credit [plaintiffs] version of the events, it would be entitled to infer that at least some of the defendants acted maliciously"); AH v. Szabo, 81 F. Supp.2d 447, 457 (S.D.N.Y. 2000) (where plaintiff's statement that he was obeying an order flatly contradicted the officers' rendition of the incident, factual issue regarding need for force precluded summary judgment on excessive force claim). Defendants also point to certain circumstances, surrounding both this particular incident and prison life in general, to justify the force that was used on this occasion. Specifically, they note that: (1) on the date in question, defendant Hasty "was confronted with a situation in which three inmates [including Kee] were being disruptive in the SHU [Special Housing Unit], including throwing food out of their cells and shouting and banging their doors at the same time" (Defs.' Mem. at 11); (2) "[a]ny disturbance [in a prison facility] raises substantial security and safety concerns" (Id.); (3) "many inmates in the SHU [where the incident in question took place] are placed there because of their history of committing disciplinary infractions . . . includ[ing] violence" (Id.); and (4) that "all three inmates [who were being disruptive] had significant disciplinary histories," including Kee, who "had been involved in two fights with other inmates, . . . had been disruptive on at least one other occasion toward an MCC staff member . . .[and] had attempted to commit suicide" (Id.)

  None of this, however, assures that, in this particular instance, restraints were used solely, as defendants contend, "to ensure that [Kee]. . . regained self-control and [was] no longer deemed to pose a threat to [himself] or others or to the orderly running of the institution." (Defs.' Mem. at 12.) It appears, in this case, that approximately three hours passed between the time when Kee first became involved in a disturbance, which was 12:30 p.m., according to the MCC's Incident Report (See Second Am. Compl., Attach. A), and the time when he was placed in four-point restraints, which occurred at 3:37 p.m., according to the BOP videotape (See Owen Reply Decl. Ex. A; see also Shepard Decl. Ex. B. ("I was notified at approximately 1:20 p.m. [of the disturbance]. . . . At approximately 3:37 p.m. inmate Charles Kee was placed in four point hard restraints.")). Further, defendants do not appear to dispute Kee's claim that he was "in control" and doing "legal work" when defendants entered his cell to place him in the restraints. (Pl's 1/26/02 Mem. at 2, 3; see also Pl's 56.1 Stmt. ¶¶ 2, 3; Pl's 1/25/02 Decl. ¶¶ 2, 6; Shepard Decl. ¶ 11 ("Members of the [use offeree] team then entered Kee's cell, and placed him in four-point restraints in another cell, without any incident or injuries to the inmate or staff."); Owen Reply Decl. Ex. A (showing Kee calmly submitting to handcuffs and walking to cell to be positioned where four-point restraints were located).) With respect to the verbal commands given prior to placing Kee in the four point restraints, there appears to be a dispute as to whether they were effective, as defendants claim that Kee "initially refused to submit to hand restraints" (Defs.' 56.1 Stmt. ¶ 10; Shepard Decl. ¶ 7),*fn15 while Kee asserts that "[o]nce [he] was told to submit to hand restraints he did" (Pl's 1/25/03 Decl. ¶¶ 2, 6).

  The Court recognizes that the decision to place Kee in four-point restraints may have been made in the context of a prison disturbance. In such a situation, deference must be accorded to prison officials' means of restoring order. See Rosario v. Coughlin, No. 88 Civ. 56, 1995 WL 57417, at *7 (N.D.N.Y. 1995) (citing Whitley v. Albers, 475 U.S. 312, 320 (1986)). Nonetheless, if, as may also be the case here, the disturbance was already under control when the alleged violation occurred, a lesser measure of deference is required. See id. Kee appears to base his claim not only on his initial placement in four-point restraints, but also on the fact that he was kept in the restraints for 22 hours, even though, according to him, he was calm the entire time.*fn16 In light of conflicts between the parties' accounts of relevant events, this case presents triable issues regarding the subjective element of Kee's excessive force claim, i.e., the question of whether defendants' placement of Kee in four-point restraints, and keeping him restrained for 22 hours, was "a good faith effort to maintain discipline or maliciously and sadistically for the very purpose of causing harm." Whitley, 475 U.S. at 320-21 (internal quotation marks and citation omitted); see also Griffin, 193 F.3d at 91 (dismissal of excessive force claim was inappropriate where there were "genuine issues of material fact concerning what transpired after appellant was handcuffed and whether the guards maliciously used force against him."); McCrory v. Belden, No. 01 Civ. 0525 (MHD), 2003 WL 22271192, at *6 (S.D.N.Y. Sept. 30, 2003) ("Depending on the specific facts of how the altercation began and proceeded, a reasonable fact-finder could conceivably conclude that some of the actions that plaintiff attributes to each of these defendants represented malicious or sadistic conduct, or at least reflected an excessive and unreasonable use offeree to keep or restore order."); Ali, 81 F. Supp.2d at 458 ("because there is a material issue of fact as to whether any force was needed, the Court cannot determine whether the force allegedly used . . . reasonably correlates to the need for the application offeree"); Johnson v. Doherty, 713 F. Supp. 69 (S.D.N.Y. 1989) (summary judgment on an excessive force claim is inappropriate where there are disputed facts as to the context in which the incident occurred and the signs of provocation).*fn17

 

(b) Material Issues of Fact Also Exist Regarding the Objective Component of the Claim
  This case also involves disputed issues of fact with respect to the objective component of Kee's excessive force claim — that component which looks to the seriousness of the force that was applied, as evidenced by the injury that the plaintiff suffered. See, e.g., Griffen, 193 F.3d at 92; McCrory, 2003 WL 22271192, at *6. This requirement can be satisfied by pain, even where the plaintiff has shown no significant injury. See U.S. v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999); Williams, 77 F.3d at 762 (noting, in case involving four-point restraints, that one reason for this exception is that "[m]ankind has devised some tortures that leave no lasting physical evidence of injury").

  Defendants argue that Kee "was placed into four point restraints . . . without any . . . injuries" (Defs.' Mem. at 12), and, thereafter, pursuant to BOP policy, was checked every 15 minutes by facility staff, and at least once per eight-hour shift by MCC medical personnel (Id.; see also Shepard Decl. ¶¶ 14, 15; Glover Decl. ¶ 7). Kee, however, has alleged that, during the 22-hour period of restraint, he suffered "back and neck problems" (Second Am. Compl. Attach. C), that he complained of "extreme pain" which has had "effects up until this very day" (Second Am. Compl. at ¶ IV-A), as well as "back, neck and wrist injuries along with extreme mental suffering" (Second Am. Compl. at ¶¶ IV, IV-A; see also Proposed Third Am. Compl. ¶ C.11).

  Defendants have presented evidence that Kee neither exhibited outward signs of injury nor voiced specific complaints of pain during the period of restraint or the months that followed (See Glover Decl. ¶ 8, Ex. B), although that evidence does indicate that, on July 3, August 31, and September 18, 2000, the MCC's medical staff refilled Kee's prescription for Motrin, which he was originally given, prior to the May 25, 2000 incident, for "complaints of headaches and back pain" (Glover Decl. ¶ 9; see also id. Ex. B). Kee, on the other hand, claims that, during the period of restraint, "[Defendants] saw me . . . and heard [me] complain of back and neck problems but continued" the restraints nonetheless. (Second Am. Compl. Attach. C.) Kee also asserts that he suffered "back and neck problems" as a result of the restraints (id), that he was "treated . . . with Motrin" for these problems (Second Am. Compl. ¶ IV), and that his request for physical therapy was refused (id.)*fn18 Viewing the evidence in the light most favorable to Kee, and recognizing that four-point restraints may have serious physical side effects, Washington v. Harper, 494 U.S. 210, 226-27 (1990), a reasonable fact-finder could at least find that Kee was taking Motrin in July, August and September 2000 to relieve pain he suffered as a result of the four-point restraints. Similarly, a reasonable fact-finder could determine that Kee's pain and injury were not de minimis.

  The conflict in the evidence regarding the existence (or extent) of the pain suffered by Kee as a result of the restraints thus creates another genuine issue of material fact. See Griffen, 193 F.3d at 92 (where plaintiff's alleged injuries of a bruised shin and swelling in one knee, although minor, could not be said to be de minimis as a matter of law to support the grant of summary judgment); McCrory, 2003 WL 22271192, at *6 (abrasions evidenced by medical records "still present a triable issue of fact," because they "may be found by a reasonable fact-finder to constitute minor rather than de minimis harm"); Crawford v. Braun, No. 99 Civ. 5851 (RMB) (JCF), 2001 WL 127306, at *4 (Feb. 9, 2001) (denying summary judgment on excessive force claim where there was a disputed issue of fact regarding the objective component of the claim); Minor v. Ramsey, No. 99 Civ. 11661 (AKH), 2001 WL 540746, at *3 (S.D.N.Y. May 22, 2001) (denying summary judgment where inmate, in handcuffs, leg irons and a waist chain, suffered a bruised and swollen wrist after alleged use of excessive force, because a jury could conclude that his injuries were serious enough to satisfy the objective element of plaintiff's claim); see also Faison, 2002 WL 467145, at *4 (where defendants did "not directly contest [plaintiff's] allegations of intense pain" both during and after 48-hour period in five-point restraints, objective component of excessive force claim satisfied). As Kee has demonstrated the existence of genuine disputed issues regarding both the subjective and objective components of his excessive force claim, I recommend that defendants' motion for summary judgment on this claim be denied.

  iii. Qualified Immunity

  Defendants also argue that "[t]he undisputed facts demonstrate that the actions taken concerning [Kee] on May 25, 2000 . . . were objectively reasonable," and that they are therefore entitled to qualified immunity with respect to Kee's excessive force claim. (See Defs.' Mem. at 10-14.)

  "The purpose of the qualified immunity doctrine is to balance the need to protect the rights of citizens through damage remedies, with the opposing need to `protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.'" Danahy v. Buscaglia, 134 F.3d 1185, 1189-90 (2d Cir. 1998) (quoting Butz v. Economou, 438 U.S. 478, 506 (1978)). "A government official is entitled to qualified immunity from suit for actions taken as a government official if (1) the conduct attributed to the official is not prohibited by federal law, constitutional or otherwise; (2) the plaintiff's right not to be subjected to such conduct by the official was not clearly established at the time of the conduct; or (3) the official's action was objectively legally reasonable in light of the legal rules that were clearly established at the time it was taken." Cuoco. v. Moritsugu, 222 F.3d 99, 109 (2d Cir. 2000) (citations omitted).

  A prisoner's right to freedom from excessive force by prison officials is a clearly established constitutional right. See, e.g, McCrory, 2003 WL 22271192, at *7 ("there is no question that . . . the right of inmates to be free from excessive force by their jailers [i]s well-established") (citation omitted). Where a right is clearly established, however, a government official is still entitled to qualified immunity if "it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act." Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001) (internal quotation marks and citation omitted). Objective reasonableness is established if "the only conclusion a reasonable jury could reach is that reasonable officers would disagree on the constitutionality" of the official's actions. Id. at 203.

  Dismissal on the basis of a qualified immunity defense is not appropriate where "there are facts in dispute that are material to a determination of reasonableness." Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999); see, e.g., Breen v. Garrison, 169 F.3d 152, 153 (2d Cir. 1999) (issues of material fact which existed as to the excessive force claim precluded summary judgment based on a qualified immunity defense); McCrory, 2003 WL 22271192, at *7 ("immunity cannot be granted on this record" where, inter alia, there was issue of fact regarding initiator of altercation between plaintiff and defendants); AH, 81 F. Supp.2d at 461 ("The Court cannot conclude as a matter of law that [officers'] conduct was objectively reasonable since there are material issues of fact as to whether [plaintiff] was obeying the officers' order and who started the physical confrontation."); Amaker v. Haponik, No. 98 Civ. 2663 (JGK), 2000 WL 343772, at *6 (S.D.N.Y. Mar. 31, 2000) (complaint should not be dismissed on qualified immunity grounds where "the facts [were] not sufficiently developed at this stage in the proceedings to conclude that a reasonable officer would not have concluded that defendants' actions were unlawful").

  Here, as discussed above, Kee has raised triable issues of fact with respect to the reasonableness of the conduct of those defendants whom he has identified as playing a direct role in placing and/or keeping him in restraints. Accordingly, I recommend that defendants' motion to dismiss the excessive force claim against those defendants on the ground of qualified immunity be denied.

  3. Deliberate Indifference Claim

   Kee also appears to be alleging that by continuing to restrain him despite his complaints of pain, and by inadequately treating his injuries and failing to meet his dietary needs after releasing him from the restraints, defendants were deliberately indifferent to his medical needs. (See Second Am. Compl. ¶¶ IV, IV-A.)

   The Eighth Amendment has been construed to safeguard an inmate's right to adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Woods v. Goord, No. 01 Civ. 3255 (SAS), 2002 WL 731691, at *3-4 (S.D.N.Y. Apr. 23, 2002). Prison officials violate this right when they are deliberately indifferent to an inmate's medical needs. Id. Like the standard for excessive force, the personal involvement of each defendant must be adequately pleaded. (See discussion supra at 24-25.) Further, determining whether officials have been deliberately indifferent also includes both objective and subjective components. Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).

   First, the plaintiff's medical need, in objective terms, must be serious. Hathaway, 37 F.3d at 66; Hutchinson v. New York State Corr. Officers, No. 02 Civ. 2407 (CMB), 2003 WL 22056997, at *4-5 (S.D.N.Y. Sept. 4, 2003) (citing Flemming v. Velardi, No. 02 Civ. 4113 (AKH), 2003 WL 21756108, at *2 (S.D.N.Y. July 30, 2003) (citation omitted)). This standard contemplates "a condition of urgency" that may "produce death, degeneration or extreme pain." Hathaway, 37 F.3d at 66 (citing Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J. dissenting)). Such a serious medical need arises where "the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Chance, 143 F.3d at 702 (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)); Woods, 2002 WL 731691, at *4.

   Second, the facts must give rise to an inference that the persons charged with providing medical care knew of that serious medical need and intentionally disregarded it. Flemming, 2003 WL 21756108, at *2; Woods, 2002 WL 731691, at *4; Johnson v. Bendheim, No. 00 Civ. 720 (JSR), 2001 WL 799569, at *7 (S.D.N.Y. July 13, 2001). To satisfy this prong of the standard, the defendant prison official must have acted with a sufficiently culpable state of mind — that is, the official must have known of and disregarded "an excessive risk to inmate health or safety." Chance, 143 F.3d at 702 (quoting Farmer v. Brennan, 511 U.S. 825 (1994)). Thus, "the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harms exists, and he must also draw the inference." Id.; see also Hathaway, 37 F.3d at 66.

   In this case, Kee has accused all of the named defendants, collectively, of denying him medical attention both during and after the 22 hours that he was in four-point restraints, despite his complaints of pain (Second Am. Compl. Attach. C), and of serving him food that they knew he could not eat (see id.). With these allegations, pleaded in the Second Amended Complaint, Kee appears to be attempting to state a claim of deliberate indifference to his medical needs, in violation of the Eighth Amendment. As a threshold matter, this claim cannot survive defendants' Rule 12(c) motion for judgment on the pleadings, because Kee has failed to allege any individual's personal involvement in the denial of medical treatment. See, e.g, Hemmings v. Gorczyk, 134 F.3d 104, 109 n.4 (2d Cir. 1998) (where plaintiff "fails to include an allegation which, if proven, would permit a reasonable trier of fact to infer that that individual was personally involved in the deliberate indifference to his medical needs, the district court may dismiss the complaint as to that individual"); Gowins v. Greiner, No. 01 Civ. 6933 (GEL), 2002 WL 1770772, at *6 (S.D.NY. July 31, 2002) ("A plaintiff must `allege a tangible connection between the defendants' alleged unconstitutional acts and the injuries suffered'.") (citing Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)).

   Further, Kee has not pleaded that he suffered a sufficiently serious injury to meet the objective component of the deliberate indifference claim. Unlike an excessive force claim, which can be sustained even in the absence of any significant injury (see supra at 23), deliberate indifference requires the plaintiff to have had an "urgent" medical condition which, as discussed above, could lead to "death, degeneration or extreme pain." Everlingv. Rielly, No. 98 Civ. 6718 (DAB), 2001 WL 1150318, at *8 (S.D.N.Y. Sept. 28, 2001) (citation omitted). Here, although Kee alleges that he sustained injuries to his "back, neck and wrist" (Second Am. Compl. ¶ IV), he does not claim that these injuries were life-threatening or otherwise severe. Under the circumstances, Kee cannot maintain his deliberate indifference claim, as pleaded. See, e.g., id. at *8-9 (finding that alleged injuries consisting of a bruised arm, a knot in plaintiff's back, and soreness around her vaginal area, satisfied the objective component of plaintiff's excessive force claim but were insufficient for her deliberate indifference claim) (citing Hathaway, 37 F.3d at 66); Rodriguez v. Mercado, No 00 Civ. 8588 (JSR) (FM), 2002 WL 1997885, at *8 (S.D.N.Y. Aug. 28, 2002) (allegations that plaintiff was "kneed in the back of the head and had his head struck against the wall" and sustained bruises to his head back and wrists were not so life threatening as to demonstrate a serious injury for deliberate indifference claim); Thomas v. Nassau Co. Corr. Ctr., 299 F. Supp.2d 333, 338 (E.D.N.Y. 2003) (objectively speaking, the allegation of an "injured hand" was not a serious enough condition to satisfy the first prong of the deliberate indifference test); cf. Henderson v. Doe, No. 98 Civ. 5011 (WHP), 1999 WL 378333, at * 2 (S.D.N.Y. June 10, 1999) (listing examples of sufficiently serious medical conditions such as loss of an ear, an allergic reaction to penicillin, and brain tumor) (citations omitted).

   Moreover, Kee's bare allegations of mental suffering and/or physical "pain" are, without more, insufficient to satisfy the stringent standard for pleading a serious injury. Thomas, 299 F. Supp.2d at 228 ("[S]ubjective complaints of pain are insufficient to satisfy this standard.") (citing Chatin v. Artuz, No 95 Civ. 7994 (KTD), 1999 WL 587885, at *3 (S.D.N.Y. Aug. 4, 1999) ("[The plaintiff's] alleged problems in his right foot may indeed be very real. His pain is not, however, of the type contemplated for satisfaction of the objective standard)); cf. Chance, 143 F.3d at 702 (plaintiff stated a sufficiently serious medical condition where he suffered great pain for six months from abscessed teeth, making him unable to chew properly and causing him to choke on his food); Hathaway, 37 F.3d at 66 (deliberate indifference standard satisfied where doctors delayed in removing pins in inmate's hips for over 2 years and where inmate complained of pain over 50 times).

   Finally, Kee's acknowledgment in the Second Amended Complaint, that the medical staff provided him with pain medication (Motrin) renders his claim of deliberate indifference insufficient under the subjective prong of the standard, which requires that the defendant officials knew of and intentionally disregarded "an excessive risk to inmate health or safety." Chance, 143 F.3d at 702 (quoting Farmer v. Brennan, 511 U.S. 825 (1994)); Williams v. Koenigsman, No. 03 Civ. 5267 (SAS), 2004 WL 315279, at *6 (S.D.N.Y. Feb. 18, 2004) (deliberate indifference claim dismissed against defendant nurse who proscribed Motrin and other pain medication for plaintiff who complained of headaches after being struck in the base of the head, even though this plan of treatment did not ultimately succeed in alleviating plaintiff's suffering). The fact that Kee may feel that more should have been done is insufficient to satisfy this component of the claim. Vento v. Lord, No. 96 Civ. 6169 (SS), 1997 WL 431140, at *4 (S.D.N.Y. July 31, 1997) ("It is well established . . . that allegations of negligence, medical malpractice or claims based on a difference of opinion over matters of medical judgment do not rise to an Eighth Amendment violation.")

   For these reasons, I recommend that Kee's deliberate indifference claim be dismissed on the pleadings. I further recommend that Kee be denied leave to replead this claim as his Proposed Third Amended Complaint alleges no facts describing a more serious injury than that described by Kee in his Second Amended Complaint. (See discussion infra at 55-56.)

   4. Deprivation of Property Claim

   In his Second Amended Complaint, Kee alleges that defendants "confiscated [his] personal property and some legal materials." (See Second Am. Compl. at ¶ IV-A.) The Court liberally construes this allegation, as defendants have, as a constitutional claim of deprivation of property.*fn19 (See Defs.' Mem. at 18.) Defendants argue that this claim is subject to dismissal on the pleadings because Kee has: (1) failed to plead exhaustion of his administrative remedies with respect to this claim; and (2) failed to plead the claim with sufficient specificity. (See id. at 18-20.) The Court need not reach the second argument, because defendants are correct that dismissal is warranted on the ground of lack of exhaustion.

   All claims of misconduct regarding prison conditions must be exhausted before they can be raised in this Court. The Prison Litigation Reform Act ("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). The Supreme Court has held that this exhaustion requirement "applies to all inmate suits about prison life, whether they involve general or particular episodes, and whether they allege excessive force or some other wrong." See Porter v. Nussle, 534 U.S. 516, 532 (2002). Moreover, claims for deprivation of property are claims "with respect to prison conditions" under § 1997e and, as such, must be exhausted under the PLRA. See Dixon v. Laboriel, No. 01 Civ. 3632 (LAP), 2003 WL 21729834, at *4 (S.D.N.Y. July 24, 2003) (dismissing deprivation of property claim because inmate had failed to exhaust administrative remedies and the claim was thus barred by the PLRA).

   The BOP's Administrative Remedy Program provides "a process through which inmates may seek formal review of an issue which relates to any aspect of their confinement . . . if less formal procedures have not resolved the matter." 28 C.F.R. § 542.10. To exhaust a claim, an inmate must first attempt to resolve his complaint by presenting the issue to staff informally. If that effort is unsuccessful, the inmate may submit a written Administrative Remedy Request to the Warden, on a standard form, within 20 days of the incident that is the subject of the complaint. If that request is denied, the inmate may, within 20 days of the denial, submit an appeal to the appropriate Regional Director, again on a standard form. Finally, if the appeal is denied as well, the inmate may appeal to the General Counsel's office, within 30 days of the Regional Director's decision. See § 542.10 et seq.; see also Joost v. Menifee, No. 03 Civ. 1608 (DLC), 2003 WL 22977499, at *2 (S.D.N.Y. Dec. 19, 2003).

   A prisoner must completely exhaust the administrative remedies to the highest level for each claim he seeks to present. See Santiago v. Meinsen, 89 F. Supp.2d 435, 440 (S.D.N.Y. 2000). Under Section 1997e, all institutional remedies must be pursued, even if the prisoner is ultimately time-barred from pursuing the administrative process or is seeking a remedy that cannot be awarded in the administrative proceeding. See id; see also Booth v. Churner, 532 U.S. 731, 736-37 (2001) (requiring an inmate to exhaust claims through all available proceedings, even those that could not provide the relief sought); Cruz, 80 F. Supp.2d at 117 (even though monetary damages sought by the plaintiff were not available in the administrative proceeding, the exhaustion requirement remained applicable).

   Because dismissal on the basis of a failure to exhaust is mandatory, Kee's deprivation of property claim can only proceed in this Court if he has exhausted all available administrative remedies with respect to it, including all appellate remedies provided within the BOP system. See Porter, 534 U.S. at 523 (citing Booth, 532 U.S. at 739); see Woods, 2002 WL 731691, at *11; Mendez v. Artuz, No. 01 Civ. 4157 (GEL), 2002 WL 313796, at *1 (S.D.N.Y. Feb. 27, 2002).

   Defendants argue that Kee's deprivation of property claim should be dismissed because, although Kee complained in his Administrative Remedy Request that his "personal property" had been "disposed," "[i]t is unclear what `disposed personal property' relates to, [Kee] did not address or further explain it in the attachment to his administrative complaint . . ., this `issue' was not addressed by the BOP, nor did [Kee] further raise it in the administrative process." (Defs.' Mem. at 19; see Owen Decl. ¶ 12; Ex. D.) In response, Kee has offered no evidence that he sought relief regarding the alleged deprivation of his property issue beyond an Administrative Remedy Request.*fn20 Although Kee maintains that "property claims were raised in the administrative process" (See Pl 10/16/02 Mem. ¶ 47), he must do more than raise the issue in the administrative process — he must fully exhaust the remedies provided therein. See Porter, 534 U.S. at 523

   As Kee has not offered any evidence, let alone sufficiently pleaded, that he has exhausted his administrative remedies on the deprivation of property claim, the claim should be dismissed. See Burns v. Moore, No. 99 Civ. 0966 (LMM) (THK), 2002 WL 91607, at *7 (S.D.N.Y. Jan. 24, 2002) (granting defendant's motion for judgment on the pleadings for failure to exhaust administrative remedies based on the pleadings and accompanying affidavits); see McCoy v. Goord, 255 F. Supp.2d 233, 250-52 (S.D.N.Y. 2003) (where it appears from the face of the complaint that a plaintiff concedes lack of exhaustion, or non-exhaustion is otherwise apparent, a court may decide the issue on a motion to dismiss). Moreover, as Kee still fails to plead exhaustion of this claim in his Proposed Third Amended Complaint, leave to replead should be denied. (See discussion infra at 49-50, 56-57.)

   5. Retaliation Claim

   Kee also appears to assert a retaliation claim against defendant Gassaway, by alleging that his placement in four-point restraints was "due to [his] complaints to [C]aptain Gassaway about [Gassaway] instructing [Kee] on how to paint the SHU, before the fabricated riot was alleged." (Pl's 1/26/03 Mem. at 6; see also Pl's 5/30/00 Mem. at 2 ("I do allege that defendants violated . . . the regulations of [the MCC] with respect to retaliation"); Second Am. Compl. Attach. D (requesting that defendants "refrain from retaliation").)

   In order to establish a claim for retaliation for an individual's exercise of his First Amendment rights, a plaintiff must show: (1) that the plaintiff's activity was protected by the First Amendment; and (2) that the defendant's conduct was in response to that protected activity. Cancel v. Goord, No. 00 Civ. 2042 (LMM), 2002 WL 171698, at *4 (S.D.N.Y. Feb. 4, 2002) (citing Posr v. Court Officer Shield # 207, 180 F.2d 409, 418 (2d Cir. 1999)). Although filing a grievance or a lawsuit is protected activity under the First Amendment, id. (citing Crawford v. Braun, No. 99 Civ. 5851 (RMB) (JCF), 2001 WL 127306, at *6 (S.D.N.Y. Feb. 4, 2001)), Kee fails to plead that he filed a grievance regarding Gassaway's instructions on painting the SHU, and never claims that his complaint on this subject was protected by the First Amendment. Thus, as Kee never alleges that he actually exercised a First Amendment right, he has not adequately pleaded that he was subjected to retaliation for exercising such a right. Further, Kee does not plead any particular circumstances, such as a close proximity in time between his complaint and his being placed in the four-point restraints, to suggest that Gassaway's conduct was retaliatory. Cf. id. (finding a sufficiently pleaded claim of retaliation where the plaintiff had filed a grievance based on the alleged retaliatory conduct as well as specifically pleading that the alleged retaliatory conduct occurred one month after filing the lawsuit). Rather, Kee's conclusory allegations of retaliation in this case are devoid of any factual detail or support, and, as such, are not sufficient to state a claim. See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (stating standard for § 1983 retaliation claim, and noting that "a complaint of retaliation that is wholly conclusory can be dismissed on the pleadings alone") (internal quotation marks and citation omitted).

   Accordingly, I recommend that Kee's retaliation claim against Gassaway be dismissed on the pleadings. I recommend, however, that this claim be dismissed with leave to replead, as defendants did not address this claim in their motion for judgment on the pleadings and/or summary judgment, and Kee has not yet had the opportunity to add additional allegations in support of this claim in an attempt to cure the noted deficiencies.

   6. Statutory Claims

   Kee also purports to bring his claims under 42 U.S.C. § 1983, 1985(3), 1986, 1997a, 1997b and 1997c.*fn21 See Pl's 10/16/02 Mem. ¶¶ 1, 29; Proposed Third Am. Compl. at 1.) To the extent they are brought under these statutes, however, Kee's claims should be dismissed, because, as defendants point out, no such claims can be maintained. (See Defs.' Reply at 9 n.3.) Section 1983 concerns violations by individuals acting under color of state law, and does not, therefore, subject federal employees to suit. See Robinson v. Overseas Military Corp., 21 F.3d 502, 510 (2d Cir. 1994). Under Section 1985(3), a plaintiff must allege a conspiracy that is motivated by racial or related class-based discriminatory animus, see Graham, 89 F.3d at 81-82, which Kee has not done, and, a valid Section 1986 claim is dependent on a valid Section 1985 claim, see id. at 82. Finally, Sections 1997a, 1997b and 1997c concern actions that may be brought by the Attorney General, and do not provide a private right of action. See Gayle v. Lucas, 1998 WL 148416, at *5 (S.D.N.Y. Mar. 30, 1998) (noting that 42 U.S.C. § 1997j precludes a private right of action under §§ 1997-1997J) (citation omitted).

   Therefore, I recommend that, to the extent that Kee purports to assert any claims under these statutes, such claims be dismissed on the pleadings, with prejudice.

  III. KEE'S MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT

   A. Applicable Legal Standards

   Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a pleading "shall be freely given when justice so requires." A "motion to amend should be denied if there is an `apparent or declared reason — such as undue delay, bad faith or dilatory motive . . . repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of an amendment, [or] futility of amendment.'" Dluhos v. Floating and Abandoned Vessel Known as "New York, " 162 F.3d 63, 69 (2d Cir. 1998) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

   An amendment is considered fufile when the proposed new claim would not withstand a motion to dismiss, either for failure to state a cause of action, or on another ground. See Milanese v. Rust-oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001); see also Avent v. Solfaro, No. 02 Civ. 0914 (RCC) (RLE), 2003 WL 21361730, at *3 (S.D.N.Y. June 12, 2003) (denying prisoner leave to amend where claims would be subject to dismissal as not fully exhausted); Whimsicality, Inc. v. Battat, 27 F. Supp.2d 456, 465 (S.D.N.Y. 1998) (denying leave to amend where the claim to be added would fail to state a claim upon which relief may be granted); Chan v. Reno, 916 F. Supp. 1289, 1302 (S.D.N.Y. 1996) (denying leave to amend where Court lacked subject matter jurisdiction over the proposed amendment). Thus, if a proposed amendment would be subject to "immediate dismissal" on some ground, the Court will not permit the amendment. See Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45, 55 (2d Cir. 1999). If, however, the party seeking to amend "has at least colorable grounds for relief, justice . . . require[s]" that its motion be granted. Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 783 (2d Cir. 1984) (citation omitted). As noted above, a pro se litigant, in particular, should be afforded a reasonable opportunity to amend his complaint to demonstrate the existence of a valid claim. See, e.g., Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984).

   B. Kee's Proposed New Allegations in Support of His Excessive Force Claim

   1. The Proposed Amendment As To Defendants Barry, Maiden, Ciancioso, Desmond, Rivera, Lett, Parrish, Cole, and Gassaway Should Be Permitted

   Kee's proposed amendment alleges that defendant Barry "assisted [placing] Plaintiff in restraints" (Proposed Third Am Compl. ¶¶ C.9); that defendant Maiden "attack[ed] Plaintiff while in restraints . . . with fist and key rings" (Id. ¶ C.11); and that defendant Ciancioso "assisted Lt. Barry in applying restraints" (Id. ¶ C.16). These allegations are adequate to allege these defendants' direct involvement in the claimed use of excessive force. See Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986).

   The Proposed Third Amended Complaint also contains allegations sufficient to plead the personal involvement of defendants Desmond, Rivera, Lett, and Parrish in this claimed violation. Each of these defendants is now alleged to have known that Kee was wrongly being held in four-point restraints, and to have done nothing to correct the situation. (See Proposed Third Am. Compl. ¶¶ C.3, C.4, C.10, C.13.)*fn22

   A correctional officer has an affirmative duty to intercede on behalf of an inmate when he witnesses a violation of that inmate's Eighth Amendment rights by his or her fellow officers. See Rosario v. Coughlin, No. 88-CV-56, 1995 WL 57417, at *8 (N.D.N.Y. Feb. 8, 1995) (correctional officers liable for excessive use offeree against inmate where, inter alia, they "failed to intervene [to stop beating of inmate], thus condoning the use of physical force upon plaintiff) (citing O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988)). "An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know [inter alia] that excessive force is being used, . . . . or [] that any constitutional violation has been committed by a law enforcement official." Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). Furthermore, a supervisory official can be held liable for constitutional tort damages if he failed to intervene in the alleged use offeree, if he knew or had reason to know that excessive force was being used. See McCoy v. Goord, 255 F. Supp.2d 233, 262 (S.D.N.Y. 2003) (inmate's allegation of prison official's "proximity to the incident and supervisory position gave him the opportunity to prevent the alleged use of force" states valid excessive force claim that official) (citing Anderson, 17 F.3d at 557).

   Drawing all inferences in Kee's favor, the proposed amendment adequately alleges that defendants Desmond, Rivera, Lett, and Parrish knew or had reason to know about the incident of which he complains and that, despite such knowledge, took no steps to correct the situation.*fn23 On this basis, the proposed amendment "permits an inference of acquiescence and personal involvement." Jackson v. Johnson, No. 90 Civ. 0661 (JSM), 1990 WL 170412, at *4 (S.D.N.Y. Oct. 26, 1990).

   As to defendant Cole, Kee's proposed amendment adds the allegation that Cole "allowed plaintiff to suffer in feces." (Proposed Third Am. Compl. ¶ C.17.) This allegation is sufficient to describe Cole's personal knowledge of the allegedly improper use of restraints, and is capable of supporting an excessive force claim. See, e.g., Davis v. Lester, 156 F. Supp.2d 588, 594 (W.D. Va. 2001) (finding that the allegation that plaintiff was, inter alia, held in five-point restraint for 48 hours "in his own urine in a cold cell" sufficiently alleged an Eighth Amendment violation based on excessive force).*fn24 Finally, although Kee has (through his supplemental submissions) sufficiently shown the basis of his excessive force claim against Gassaway (see supra at 26-29), Kee's proposed amendment goes farther to specify the basis of that claim. In his Proposed Third Amended Complaint, Kee pleads that Gassaway "used last resort first" — presumably by placing Kee in four-point restraints without first attempting less severe means of restoring order. (See Proposed Third Am. Compl. ¶ C.2; Attachment to Kee's Request for Administrative Remedy, dated June 14, 2000, attached to Proposed Third Am. Compl. ("Staff ordinarily shall first attempt to gain the inmate's voluntary cooperation before use of force.").) This additional allegation should be permitted as clarifying Kee's excessive force claim against Gassaway.

   For all of these reasons, the proposed amendment to Kee's excessive force claim against Barry, Maiden, Ciancioso, Desmond, Rivera, Lett, Parrish, Cole, and Gassaway would not be fufile and should be permitted under Rule 15(a). 2. The Proposed Amendment as to Defendant Jean Should Be Denied as Fufile

   In his proposed amendment, Kee alleges that Jean "falsif[ied] [an] incident report" (Proposed Third Am. Compl. ¶ C.18),*fn25 referring, presumably, to the facility's written record of the events of May 25, 2000 (See Incident Report, dated May 25, 2000 (Proposed Third Am. Compl. Attach. A)).

   A prison officer's falsifying of a report regarding an alleged violation of an inmate's rights does not, in itself, rise to the level of a constitutional deprivation, absent a showing that the officer was personally involved in the underlying incident. See Williams, 781 F.2d at 324 (affirming dismissal of constitutional claim against prison officer who, inmate alleged, "filed a false misbehavior report which initiated the procedurally flawed disciplinary hearing," because "[t]he filing of a false report does not, of itself, implicate the guard who violated it in constitutional violations which occur at a subsequent disciplinary hearing") (citing Sommer v. Dixon, 709 F.2d 173, 174-75 (2d Cir. 1983)); Jackson, 1990 WL 170412, at *4 ("plaintiff's allegation concerning the falsification of the report fails to state a claim since, even assuming that the report was falsified, it does not appear that this caused plaintiff any harm let alone the deprivation of a constitutional right") (citations omitted). As Kee's proposed amendment alleges, with respect to defendant Jean, nothing more than his falsification of the report, it fails to state a constitutional claim as to him, and the amendment would thus be fufile. I therefore recommend that Kee's motion for leave to amend his excessive force claim against defendant Jean be denied.*fn26

   C. Kee's Proposed New Allegations in Support of His Deliberate Indifference Claim

   To buttress his claim of deliberate indifference, Kee seeks to add allegations that defendants Desmond, Rivera, Barry and Lett were each "informed of injuries [that Kee incurred in the four-point restraints] and did nothing." (Proposed Third Am. Compl. ¶ C.9; see also id. ¶¶ C.3; C.4; C.10.)

   These new allegations do describe, at least to some extent, the nature of each of these defendants' personal involvement in the alleged violation. See Jackson, 1990 WL 170412, at *4 (motion to dismiss denied where "plaintiffs claims, if true, would implicate defendant" in an incident that could have been a constitutional violation); cf. Khan. v. U.S., 271 F. Supp.2d 409, 413 (E.D.N.Y. 2003) (inmate's Bivens claims against prison officials dismissed for failure to state a claim because "plaintiff has failed to allege any facts against" those officials) (emphasis added).

   Nonetheless, Kee's deliberate indifference claim remains deficient as pleaded because, in his Proposed Third Amended Complaint, Kee still fails to allege that he suffered a sufficiently serious medical condition. The only new allegation Kee seeks to add in this regard is that he suffered "welts" and "bruises" on his body, neck, and wrist. (Proposed Third Am. Compl. ¶ C. 11.)*fn27 In all other respects, the injuries alleged in Kee's proposed amendment mirror the allegations of injury set forth in the Second Amended Complaint. Even reading his Proposed Third Amended Complaint liberally, Kee has still failed to allege a serious enough condition to satisfy the objective prong of the deliberate indifference standard. (See discussion supra at 39-42.)

   For this reason, Kee's proposed amendment to his deliberate indifference claim against defendants Desmond, Rivera, Barry, and Lett should therefore be denied as fufile.

   D. Kee's Proposed New Allegations in Support of His Deprivation of Property Claim

   In addition to arguing that Kee never exhausted his deprivation of property claim, defendants have also argued that the claim, as pleaded in the Second Amended Complaint, is subject to dismissal for failure to plead with specificity either the nature of the property taken from Kee, or who was responsible. (Defs.' Mem. at 19-20; see generally Santiago v. James, No. 95 Civ. 1136 (JFK), 1998 WL 474089, at *4 (S.D.N.Y. Aug. 11, 1998) (inmate's claim regarding access to law library deemed too "insubstantial" to survive on the pleadings, where, inter alia, plaintiff failed to offer specific facts "such as the type of materials that he requested, who allegedly denied him the materials or when or frequency of these alleged occurrences").) Kee's proposed amended pleading rectifies these pleading defects, at least to some extent, as to particular defendants. (See, e.g., Proposed Third Am. Compl. at ¶ C.2 (alleging that defendant Gassaway "destroyed [Kee's] legal documents [and] took books").)

   Nonetheless, unless and until Kee can plead that his claim is exhausted, he cannot raise it before this Court. I therefore recommend that leave to amend this claim be denied, because, in light of Kee's apparent failure to exhaust this claim, the proposed amendment would be fufile. E. Newly Named Defendants

   Kee seeks to name three additional defendants in his Proposed Third Amended Complaint: Lieutenant Moore ("Moore"), who Kee claims was "on duty. . . .[acquiesced] and did nothing to correct" the use of excessive force against him (Proposed Third Am. Compl. ¶ C.1 9), and two members of the MCC medical staff, Physician's Assistants Erwin Ramos and Evangelis, who, he claims, "failed to properly treat [him]" (Id. ¶¶ C.7, C.8; see also Pl's 10/16/02 Mem. ¶ 12).*fn28

   Although Rule 21 of the Federal Rules of Civil Procedure governs the addition of new defendants, in deciding whether to allow joinder, the Court is guided by "the same standard of liberality afforded to motions to amend pleadings under Rule 15." Soler v. G & U, Inc., 86 F.R.D. 524, 527-28 (S.D.N.Y. 1980) (internal quotation and citation omitted); see also Clarke v. Fonix Corp., 98 Civ. 6116 (RPP), 1999 WL 105031, at *6 (S.D.N.Y. Mar. 1, 1999) ("Although Rule 21, and not Rule 15(a) normally governs the addition of new parties to an action, the same standard of liberality applies under either Rule.") (internal quotation and citation omitted), aff'd, 199 F.3d 1321 (2d Cir. 1999); Sheldon v. PHH Corp., No. 96 Civ. 1666 (LAK), 1997 WL 91280, at *3 (S.D.N.Y. Mar. 4, 1997) ("While plaintiffs' motion [to add a new defendant] properly is considered under Rule 21 rather than Rule 15, nothing material turns on this distinction."); Kaminsky v. Abrams, 41 F.R.D. 168, 170 (S.D.N.Y. 1966).

   1. Kee Should Be Permitted To Add Moore as a Defendant

   For the same reason that Kee's new allegations against defendants Desmond, Rivera, Lett, and Parrish are adequate to state a claim for the use of excessive force (see supra at 50-52 (discussing adequacy of allegations that officers had knowledge of use of excessive force, but took no steps to intervene)), the similar proposed allegations against Moore with respect to that claim are sufficiently pleaded in the Proposed Third Amended Complaint, and I therefore recommend that Kee be granted leave to add Moore as a defendant.

   2. Kee Should Not Be Permitted To Add Ramos and Evangelis as Defendants Because the Amendment Would Be Fufile

   Kee's naming of Ramos and Evangelis is apparently intended to rectify the inadequacy of Kee's original attempt to name the entire MCC "Medical Department Staff as defendant on his claim of deliberate indifference to his medical needs. Although Kee's proposed addition of these physician's assistants as individual defendants answers the question of which members of the medical staff Kee is seeking to hold responsible, the allegations he proposes to assert against these new defendants are still lacking in the specificity necessary to state a claim.

   Aside from accusing them of falsifying reports, which, as discussed above, is not in itself sufficient to state a claim for a constitutional violation,*fn29 Kee merely proposes to allege that Ramos and Evangelis each "failed to properly treat" him.*fn30 (Proposed Third Am. Compl. ¶¶ C.7, C.8.) These allegations are overly conclusory. They fail to specify the dates on which Kee was denied proper treatment, the nature of his needs on those dates, and the nature of the treatment that was purportedly denied by these defendants. Without such details, Kee's allegations cannot survive. See, e.g., Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp.2d 303, 308-09 (S.D.N.Y. 2001) ("A generalized claim that an inmate was denied access to medical treatment will not suffice" to state a claim); Vento v. Lord, No. 96 Civ. 6169 (SS), 1997 WL 431140, at *4 (S.D.N.Y. July 31, 1997) (plaintiff failed to state a claim of deliberate indifference because, inter alia, her assertion that "medical staff will not see me fit for medical attention" was conclusory and lacked necessary information, i.e., officials' names, dates, and details of sick call requests) (internal quotation marks and ellipsis omitted); cf. Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987) ("It is well-settled that . . . allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983.") (citations omitted).

   Moreover, the proposed deliberate indifference claim against Ramos and Evangelis suffers from the same defect as Kee's deliberate indifference claim against other defendants, as his claimed injury does not rise to the level of a sufficiently serious medical condition. (See discussion supra at 39-42.)

   As the claims Kee proposes to assert against Ramos and Evangelis would be subject to dismissal for failure to state a claim, I recommend that Kee be denied leave to amend his pleading to name these two physician's assistants as defendants. I further recommend that this denial be with prejudice, as Kee has already attempted to cure the deficiency in his pleading and has been unable to do so. CONCLUSION

   For the foregoing reasons, I hereby recommend that:

(1) As to plaintiff's motion for a partial default judgment:
(a) the motion be denied as to defendants Parrish, Jean, and Garcia;
(b) the motion be denied as to defendant Williams, with a direction to defendants' counsel to notify Kee and the Court of any change in Williams' military status; and
(c) the motion be denied as to defendant "Medical Department Staff," and this defendant be dropped from the caption.
(2) As to defendants' motion for judgment on the pleadings and/or summary judgment:
(a) the motion for judgment on the pleadings be granted, without leave to replead, as to:
(i) any claims for declaratory or injunctive relief,
(ii) any claims against defendants in their official capacities;
(iii) the excessive force claim against defendant Jean; and
(iv) any claims of deliberate indifference, deprivation of property, or violations of 42 U.S.C. § 1983, 1985(3), 1986, 1997a-c, and the ADA;
(b) the motion for judgment on the pleadings be granted, with leave to replead, as to:
(i) the excessive force claim against defendants Barry, Maiden, Ciancioso, Desmond, Rivera, Lett, Parrish, and Cole; and
(ii) the retaliation claim against defendant Gassaway; and
(c) the motion for judgment on the pleadings, as well as defendants' alternative motion for summary judgment, be denied as to the excessive force claim against defendants Hasty, Shepard, Brown, Linder, Ortiz, and Gassaway. (3) As to plaintiffs motion for leave to file a Third Amended Complaint:
(a) the motion be granted as to:
(i) the excessive force claim against defendants Barry, Maiden, Ciancioso, Desmond, Rivera, Lett, Parrish, Cole, and Gassaway; and
(ii) the addition of Moore as a named defendant; and
(b) the motion be denied as to:
(i) the excessive force claim against defendant Jean;
(ii) any claims of deliberate indifference and deprivation of property; and
(iii) the addition of Ramos and Evangelis as named defendants.
   Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, U.S. Courthouse, 500 Pearl Street, Room 1610, New York, New York 10007, and to the chambers of the undersigned, U.S. Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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