The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are (a) the motion of defendant New York State Department of Correctional Services ("DOCS") to dismiss the Amended Complaint, for extension of time to file an Answer until after decision on this motion, and to stay discovery pending consideration of this motion (Docket No. 38*fn1 ); and (b) motions of most of the individual defendants for similar relief (Docket Nos. 44, 45*fn2 ). These individual defendants join in the arguments of DOCS (Docket Nos. 44, 45). The parties consented to proceed before the undersigned as Magistrate Judge on June 15, 2006 (Docket No. 16).
Responses to the DOCS motion were due (following stipulations of the parties) on or before April 30, 2007, and any reply was due on or before May 7, 2007 (Docket Nos. 40, 42). This motion was deemed submitted without oral argument on May 7, 2007 (Docket No. 42). DOCS's motion to stay discovery pending consideration of this motion was granted and the request to extend the time to file an Answer was deemed unnecessary under Federal Rule of Civil Procedure 12(a)(4) (Docket No. 40). The Court then scheduled briefing for the individual defendants' motions to coordinate all three motions to be decided in a single Order (giving time for the remaining individual defendants to make their own motions if they intended to). Responses to the individual defendants' motions were due by May 21, 2007, and any reply was due by June 4, 2007, with all motions then deemed submitted (without oral argument) on June 4, 2007 (Docket No. 46). The individual movants received the same procedural relief (staying discovery, denying as unnecessary extension of time to answer) as DOCS received (id.). The Court also adjourned a scheduled pretrial conference while this motion was pending (Docket No. 49). The Court then ordered the parties to brief the impact of the United States Supreme Court's recent decision, Bell Atlantic Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955 (May 21, 2007), on this case and its change in the motion to dismiss standard, with briefs due by June 21, 2007 (Docket No. 50).
Plaintiff (an inmate initially proceeding pro se) alleges that he is legally blind and requested (but was denied by DOCS) visual aids and accommodations while in the Special Housing Unit of Wende Correctional Facility (Docket No.1, Compl., appendix at 10, 1-2, 3-4, 6-7). DOCS filed its Answer (Docket No. 12). The Court then appointed counsel for plaintiff (Docket No. 15) and, whereupon plaintiff filed a proposed Amended Complaint (Docket No. 24; Docket No. 27, Pl. Atty. Decl. Ex. A; see Docket No. 20 (plaintiff's counsel stating his intention to seek leave to amend the pleadings)) and then moved for leave to file it (Docket No. 26; see also Docket No. 22, stipulation extending time to file Amended Complaint). Plaintiff was granted leave (Docket No. 36) and filed his Amended Complaint on March 9, 2007 (Docket No. 37, Am. Compl.; see Docket No. 41, Order for service of Amended Complaint upon individual defendants).
The Amended Complaint alleges five causes of action: violations of the Americans with Disabilities Act by all defendants (see Docket No. 37, Am. Compl. ¶¶ 87-93), violations of the Rehabilitation Act by all defendants (id. ¶¶ 94-100), cruel and unusual punishment by the individual defendants only (id. ¶¶ 101-02), denial of procedural due process by the individual defendants (id. ¶¶ 103-04), and retaliation again by the individual defendants only (id. ¶¶ 105-07). The Amended Complaint adds fifteen individual defendants (id. ¶¶ 7-21).
Defense Objections to this Amended Complaint
Given the nature of defense motions, recitation of arguments in opposition to the previous motion for leave to amend the Complaint is in order. Defendant DOCS raised substantive arguments against allowing plaintiff leave to amend his pleading (Docket No. 30). DOCS argued that plaintiff's first and second causes of action were almost indistinguishable and failed to sufficiently allege a prisoner's claim for retaliation against prison personnel by not alleging a retaliatory motive by the named potential defendants (Docket No. 30, Def. Memo. at 3-5). The amendment did not allege the involvement of potential defendants lieutenants Herdzik or Ashby in plaintiff's forced removal from his cell or these defendants' knowledge of plaintiff's grievances (id. at 5). DOCS argued that the amendment failed to allege a claim against proposed defendant Overhoff (id. at 5-6). The amendment also did not allege any particular litigation or grievance that the individual defendants knew of that lead to the alleged retaliation (id. at 6).
As for the third claim, DOCS contended that this claim is unrelated to the subject of the original complaint, alleging retaliatory acts and unrelated to his accommodation claims, and fails to state a claim (id. at 7-8). DOCS then noted that this claim did not allege personal involvement by the proposed defendants (id. at 8).
As for the fourth claim for deprived due process, DOCS argued that plaintiff had no protected liberty interest in an educational, vocational or rehabilitation program to state a due process claim (id. at 9). DOCS claimed that the amendment did not specify the disciplinary proceedings plaintiff was prevented from meaningfully participating in due to the lack of a reasonable accommodation (id.). Again, DOCS contended that plaintiff failed to allege personal involvement of the individual defendants in this claim.
DOCS argued that the fifth claim was cryptic but reiterated the first and second claims for retaliation and fails for similar reasons as those claims (id. at 10-11). Finally, defendant argued that plaintiff failed to state a claim against several of the then new individual defendants (Andzel, Kearney, Kirkpatrick, Madison, Monihan, Zon) by not alleging their personal involvement (id. at 11, 12), see Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990) (conclusory allegations of a conspiracy without alleging overt acts cannot avoid dismissal), cert. denied, 499 U.S. 937 (1991), claiming that plaintiff had not alleged Monell liability for supervisory or respondeat superior liability of those defendants (id. at 12), cf. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690, 694 (1978).
DOCS now moves to dismiss the Amended Complaint (Docket No. 38), which most of the individual defendants join (Docket Nos. 44, 45). The Court thus treats all three pending motions as being identical and considers them together. First, defendants contend that the first and second causes of action (violations of the Americans with Disabilities Act and of the Rehabilitation Act) are legally indistinguishable and both fail to state a claim (Docket No. 39, DOCS Memo. at 3). Repeating arguments made in opposition for granting leave to amend to assert these claims, defendants now argue that plaintiff is alleging a retaliation claim in these causes of action but fails to allege facts to show defendants had a retaliatory motive (id. at 4). As for defendants Herdzik and Ashby, plaintiff fails to allege their involvement in an extraction of plaintiff from his cell in August 19, 2005, or their knowledge of any grievances plaintiff may have filed prior to the extraction (id. at 4-5). As for defendant Overhoff, the Amended Complaint only alleges that he "spitefully" banged on plaintiff's cell and that he "harassed" him (Docket No. 37, Am. Compl. ¶¶ 81, 83), without specifying when these incidents occurred or provide other information to put that defendant on notice (Docket No. 39, DOCS Memo. at 5). Defendants conclude that the Amended Complaint did not identify a particular grievance or lawsuit or show that defendants have knowledge of them to sustain a retaliation claim (id. at 5-6).
Next, defendants argue that the third cause of action, for cruel and unusual punishment, fails to state a claim (id. at 6), with the individual defendants noting that the Amended Complaint did not allege their respective personal involvement in the deprivation of plaintiff's Eighth Amendment rights (id.).
On the fourth cause of action, for denial of procedural due process in not providing plaintiff with reasonable accommodations and by refusing to abide by grievance procedures, defendants also contend that plaintiff failed to state a claim (id. at 7-8). Defendants argue that plaintiff's attempt to claim denial of access to prison educational programs does not state a due process violation since plaintiff lacks a protected liberty interest in prison educational programs, see Wright v. Coughlin, 31 F. Supp. 2d 301, 317 (W.D.N.Y. 1998) (Foschio, Mag. J.); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (dismissing claim the prison classification of inmate deprived him of access to rehabilitation program) (id. at 7). Plaintiff alleges that, due to DOCS and others not providing reasonable accommodations for his disability, he could not participate in his grievances; defendants reply that plaintiff fails to allege which specific grievances were affected by the alleged lack of accommodations or what sanctions were imposed upon plaintiff that were "atypical and significant hardship," see Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460 (1989), due to not accommodating him in the grievance process (id. at 7-8).
As for the fifth cause of action, for retaliation by the individual defendants, defendants contend that this claim is similar to plaintiff's Americans with Disabilities Act and Rehabilitation Act claims and should be dismissed for the same reasons (id. at 8-9).
Finally, defendants argue that the Amended Complaint fails to state a claim as to some of the individual defendants, Andzel, Kearney, Kirkpatrick, Madison, Monihan, and Zon, since the Amended Complaint does not state specific allegations against them (id. at 9-10).
Defendants, however, do not argue that plaintiff fails to state a claim generally or against DOCS in the first and second causes of action.
Plaintiff argues that DOCS lacks standing to move to dismiss on behalf of the individual defendants (Docket No. 43, Pl. Memo. at 2). He contends that, as for DOCS, the motion is governed by the law of the case (from this Court's grant of leave to amend) and otherwise is meritless (id. at 2-4, 4-5). As for the individual defendants, plaintiff contends that the individual defendants have not raised additional arguments that DOCS had not already raised, thus ...