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DINGLE v. POLAND

United States District Court, W.D. New York


April 24, 2004.

CHARLES A. DINGLE, 84-A-2652, Plaintiff,
v.
THOMAS POLAND, Defendant.

The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge

DECISION and ORDER

Plaintiff, Charles Dingle, seeks reconsideration (Docket Nos. 8-9), pursuant to Fed.R.Civ.P. 60(b), of that part of this Court's Decision and Order, filed November 26, 2003, that dismissed his claims against Defendants James Conway, Superintendent of Attica Correctional Facility, and Lucien LeClaire, Deputy Commissioner of Facility Operations, in their official capacities. (Docket No. 7). The Court dismissed those claims on the grounds that the Eleventh Amendment to the United States Constitution prohibits claims against state officials in their official capacities. E.g., Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). The Court dismissed each of the claims in the Complaint, except the claim against Defendant Poland set forth in the First Cause of Action alleging unlawful retaliation. The other three causes of action, which were dismissed in their entirety, pursuant to 28 U.S.C. § 1915(d)(2)(B)(ii) and 1915A(b)(1), alleged an unconstitutional cell search (Complaint, Second Cause of Action, ¶¶ 38-52); an unconstitutional strip frisk or search of Plaintiff's person (id., Third Cause of Action, ¶¶ 53-61); and a state common law assault claim against Poland (id., Fourth Cause of Action, ¶¶ 62-68). (Docket No. 7, Decision and Order). On this Motion for Reconsideration, Plaintiff claims that the Court misconstrued his claims against Defendants Conway and LeClaire because he was seeking injunctive relief against them to stop or prevent further acts of retaliation or harm by Defendant Poland, a Correctional Officer at Attica. (Complaint, ¶¶ 36, First Cause of Action). This Court construed Plaintiff's claims against these two Defendants to be against them in their official capacities and for monetary damages, and that Plaintiff was claiming that these two Defendants were responsible for overlooking and disregarding unlawful behavior and noncompliance with directives of the New York State Department of Correctional Services ("DOCS") in relation to cell searches. (Docket No. 7, Decision and Order, pp. 4-5; Complaint, ¶¶ 5-6, 47-48, Second and Third Causes of Action). As noted, the claims alleged in the Second and Third Causes of Action were dismissed in their entirety because the United States Supreme Court had held that inmates do not have a right to privacy in their cells, Hudson v. Palmer, 468 U.S. 517, 525-27, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and because strip searches of inmates are constitutional as long as they are reasonable and not abusive. Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 473 (S.D.N.Y. 1998) (citing Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). Accordingly, to the extent that the Court construed Plaintiff's claims against Conway and LeClaire to relate only to his allegations of an unconstitutional cell and strip search, they were properly dismissed because Plaintiff did not state a claim for relief based on those allegations.

Plaintiff, however, now claims that his allegations against Conway and LeClaire related to their failure to ensure that he would not be retaliated against in the future by Poland (Docket No. 9, Plaintiff's Memorandum of Law to Reargue, pp. 1-2). The only claim that presently remains is the claim against Poland for allegedly placing a shank in Plaintiff's cell in retaliation for Plaintiff filing a complaint about an assault against another inmate by several correctional officers. (Complaint, ¶¶ 18-20; Decision and Order, Docket No. 7, pp. 3-5). While Plaintiff may be correct in his legal conclusion that claims against state officials in their official capacities for prospective injunctive relief are not barred by the Eleventh Amendment, Edelman v. Jordan, 415 U.S. 651, 668-69, 677, 94 S.Ct. 1347,1362-63, 39 L.Ed.2d 662 (1974) (a federal court may grant prospective injunctive relief only to stop or prevent acts that are illegal under federal law), Plaintiff's claims against these Defendants, even if they can be liberally construed to allege what he now claims, i.e., to prevent future retaliation by Poland, still fail because the Complaint does not allege the requisite personal involvement of Conway and LeClaire in the alleged constitutional violation by Poland See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).

  Paragraph 36 of the Complaint, which Plaintiff claims sets forth the request for injunctive relief against Conway and LeClaire in their official capacities in the First Cause of Action (see Docket No. 9, Plaintiff's Memorandum of Law to Reargue, p. 2), simply states in pertinent part that "plaintiff also demands . . . injunctive relief against Lucien LeClaire to prevent any retaliatory harm and to bring this Defendant into compliance with their own rules and regulations." (Complaint, ¶ 36). This request for relief against LeClaire is repeated in the Second and Third Causes of Action, both of which were dismissed for failure to state a claim, a finding that Plaintiff does not challenge on this Motion. These allegations and requests for relief are clearly insufficient to allege a claim for injunctive relief against Conway and LeClaire in regards to the alleged retaliation by Poland First, there is no request for injunctive relief against Conway in Paragraph 36 of the Complaint or in the First Cause of Action. Second, there are no allegations in the Complaint that Conway and LeClaire were in any way personally involved in the alleged retaliation by Poland In fact, the only allegations of personal involvement against these Defendants are allegations relating to the Second and Third Causes of Action where Plaintiff alleges that Conway ordered an unconstitutional cell search on May 14, 2003 (Complaint, ¶ 21), and an allegation that LeClaire and Conway failed to supervise their subordinates in the enforcement of DOCS' rules and regulations relating to searches at Attica. (Id., ¶ 46-48). As noted, the claims relating to cell and strip or frisk searches were dismissed for failure to state a claim. In the absence of any allegations of personal involvement in the alleged constitutional violation alleged in the only remaining claim, i.e., the retaliation claim, Plaintiff's claims against LeClaire and Conway, even to the extent they are properly construed to allege a claim for injunctive relief against them in their official capacities, were properly dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b).

  Accordingly, Plaintiff's Motion for Reconsideration of this Court's Decision and Order, filed November 26, 2003 (Docket Nos. 8-9) is DENIED.

  SO ORDERED.

20040424

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