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December 10, 2004.

CURTIS POIRIER et al., Defendants.

The opinion of the court was delivered by: GEORGE DANIELS, District Judge


Pro se plaintiff brings suit alleging violations of his constitutional rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments. All defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, defendants' motion to dismiss is granted.


  Plaintiff Jonathan Odom, currently an inmate at Attica Correctional Facility, brings this pro se action alleging violations of various constitutional rights against 80 defendants. Plaintiff commenced his initial action on July 9, 1999, amended that complaint on September 9, 1999 and submitted the current Second Amended Complaint ("Complaint") on May 22, 2000. The gravamen of plaintiff's complaint is that the defendants violated his constitutional rights in retaliation for having filed a federal civil rights action and grievances against the prison system, its officers, and its administrators. Plaintiff alleges that the defendants transferred him to numerous correctional facilities,*fn1 assaulted him, initiated unwarranted disciplinary proceedings against him; prevented him from presenting a defense during these proceedings; refused to review his appeals of the adverse determinations from these disciplinary hearings; obstructed his access to the court system and to his legal materials; and denied him medical care "in retaliation for . . . having exercised his constitutional right to file federal and state lawsuits and grievances against named defendants and/or unconstitutional prison conditions and treatment." Id. at 30, ¶ 92. Plaintiff further claims that an unofficial policy exists within the DOCS to improperly investigate harassment complaints. Id. at 15-16, ¶¶ 40-49. This policy was designed to "discredit all prisoners' claims of staff misconduct" and to "prepare all DOCS' reports in a manner which favorably establishes the credibility of the facility and department." Id. at 7, ¶ 19. Lastly, plaintiff challenges the DOCS grievance procedure, alleging that numerous defendants "were not providing sufficient office time for inmate grievance representatives/clerks to meaningfully and effectively perform their official responsibilities and duties." Id. at 16, ¶ 50. Plaintiff alleges that this practice deprived "inmates of a fair opportunity to have their grievances timely and impartially investigated, processed and heard at all stages." Id. at 32, ¶ 96. These actions allegedly infringed upon plaintiff's First, Sixth, Eighth, and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983 ("§ 1983").*fn2

  In their motion to dismiss, defendants first argue that plaintiff's claims are barred by the statute of limitations;*fn3 that plaintiff has failed to allege that he exhausted his administrative remedies;*fn4 and that plaintiff's claim for money damages is barred under the Prison Litigation Reform Act ("PLRA") for failure to allege physical injury.*fn5 Defendants also argue that plaintiff's complaint substantively fails to state a cognizable retaliation claim, a violation of due process claim, an excessive use of force claim, or a medical indifference claim. Defendants additionally argue that plaintiff does not demonstrate a claim for denial of access to the courts, nor does plaintiff allege the requisite personal involvement in the asserted constitutional violations.*fn6


  I. Standard of Law Applied to Motions to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

  Federal Rule of Civil Procedure 12(b)(6) provides that in response to a claim for relief in a pleading, a party may make a motion to assert the defense of "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In deciding a motion to dismiss, a court should liberally construe the complaint, "`accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.'" Kforce Inc. v. Alden Personnel, Inc., 288 F.Supp.2d 513, 515-16 (S.D.N.Y. 2003) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). "`The issue to consider is not whether the plaintiff will ultimately prevail but whether [he] is entitled to offer evidence to support the claims.'" New v. Ashcroft, 293 F.Supp.2d 256, 257 (E.D.N.Y. 2003) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)). The complaint may only be dismissed if plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Id. Moreover, where plaintiff is proceeding pro se, the Court should hold his submissions to a less stringent standard than had the pleadings been drafted by an attorney. Id.

  II. 42 U.S.C. § 1983

  To maintain a cause of action under 42 U.S.C. § 1983, plaintiff must allege: (i) a violation of a federal statute or constitutional right and (ii) must show that the alleged deprivation was committed by a person "acting under the color of state law." West v. Atkins, 487 U.S. 42, 48 (1988), 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Plaintiff asserts the following claims under § 1983: violations of his First Amendment right to free speech in his first cause of action; violations of his constitutional rights caused by an unofficial DOCS policy in his second cause of action; violations of his due process rights and access to the courts under the Fourteenth Amendment in his first, third, fourth and sixth causes of action; and violations of his right to be free from cruel and unusual punishment under the Eighth Amendment in his fifth cause of action.*fn7

  A. Retaliation Claims

  Plaintiff's retaliation claim focuses on conduct which he alleges was performed by specific individuals "in retaliation for . . . having exercised his constitutional right to file federal and state lawsuits and grievances against named defendants and/or unconstitutional prison conditions and treatment." Id. at 30, ¶ 92. At the center of plaintiff's retaliation claim are the numerous transfers he received to various correctional facilities. Plaintiff alleges that these transfers were initiated and illegally justified by numerous, unwarranted disciplinary actions. Specifically, plaintiff asserts that defendants relied on "dismissed or expunged misbehavior reports," false testimony, and documentary evidence which were "legally insufficient, incomplete and/or altered to sustain the charges against plaintiff as justification for transferring him. Complaint at 8, 10 ¶¶ 23, 29-30. During the disciplinary hearings to address these misbehavior reports, plaintiff alleges that he was prevented from presenting a defense and that the officers who conducted the various hearings relied on false and legally insufficient testimony and other evidence in sustaining the charges against him. Lastly, plaintiff claims that his administrative appeals of the adverse decisions that came from these proceedings were inadequately reviewed. Complaint at 8-11 ¶¶ 22-32.

  Plaintiff further alleges that he was twice assaulted by different officers in retaliation for his filing of lawsuits and grievances.*fn8 Plaintiff alleges that subsequent to the first assault by defendant Koupash, the defendant filed a false misbehavior report to justify his assault. At the hearing concerning this misbehavior report, plaintiff alleges that the officer provided false testimony and that evidence which could have exonerated him was destroyed. Plaintiff also claims that the defendant who conducted the hearing prevented plaintiff from presenting a defense and relied on legally insufficient, incomplete and altered evidence. Subsequent to the hearing, plaintiff alleges that defendants insufficiently reviewed his administrative appeals. Complaint at 11-13, ¶¶ 33-37.

  Plaintiff makes similar allegations regarding another misbehavior report, dated March 1, 2000. Plaintiff asserts that the misbehavior report was unfounded, that the officer who issued it provided false testimony at his hearing, and that the official who conducted the hearing relied on legally insufficient evidence as well as false testimony and prevented plaintiff from presenting a defense. Complaint at 12-13, ¶¶ 37-39. Finally, plaintiff alleges that he was denied medical care and that the defendants obstructed his access to the court system and to his legal materials in retaliation for his lawsuits and grievances.

  Defendants argue that plaintiff has offered nothing beyond "bald allegations of general misconduct." Defendants' Brief at 23. They assert that plaintiff has failed to ascribe specific conduct to specific defendants and that plaintiff's allegations that he was retaliated against are "wholly vague and conclusory."*fn9 Defendants' Brief at 23-24. Defendants further argue that plaintiff's claims regarding his inability to file grievances or lawsuits is belied by "plaintiff's admission in the complaint that, despite his troubles, he pursued numerous grievances and lawsuits." Id. at 24. Lastly, defendants stress that plaintiff's allegations of retaliatory false misbehavior reports cannot sustain a claim of a constitutional violation as "a prison inmate has no constitutional right to be free from being falsely accused in a misbehavior report — there must be more, such as retaliation against the prisoner for exercising a constitutional right." Id. The First Amendment provides that Congress shall make no law "abridging the freedom of speech" or abridging the right "to petition the Government for a redress of grievances." U.S. CONST. amend. I. In order to establish that defendants have retaliated against plaintiff in violation of his First Amendment rights, plaintiff must demonstrate "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." Scott v. Coughlin, et al., 344 F.3d 282, 287 (2d Cir. 2003); see also Nicholas v. Davis et al., 74 Fed.Appx. 131, 134 (2d Cir. 2003). The allegations advanced must be non-conclusory. Due to the potential for fabrication of retaliation claims, courts have required a "higher level of detail in [the] pleading[s]." Johnson v. Eggersdorf et al., 8 Fed.Appx. 140 (2d Cir. 2001) (quoting Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987)); see also Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). Furthermore, courts, recognizing that claims of retaliation by prisoners can be easily abused, have held that a retaliation claim that is wholly conclusory can be dismissed on the pleadings alone. See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).

  Plaintiff meets the first prong by alleging that the filing of grievances and lawsuits is constitutionally protected. The Second Circuit has held that "retaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983." Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (citing Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988)). The right to petition the government for redress of grievances includes the right to file lawsuits as well as the right to pursue administrative grievances. Franco, 854 F.2d at 589. Indeed, the right to petition government for redress of grievances is "among the most precious of the liberties safeguarded by the Bill of ...

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