The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff pro se Thomas Anderson ("Anderson"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, two DOCS employees, violated his constitutional rights under the Fifth, Eighth, and Fourteenth Amendments. Compl. (Docket No. 1). Presently pending is defendants' motion for partial judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Docket No. 13.*fn2 Anderson has not respond to the motion. For the following reasons, it is recommended that defendants' motion be granted.
The facts are related herein in the light most favorable to Anderson as the non-moving party. See subsection II(A) infra.
At all relevant times, Anderson was housed at Auburn Correctional Facility. Compl. at ¶ 5. On June 14, 2003, an incident occurred between corrections officers and inmates associated with the Bloods, a gang, which resulted in the facility being placed on twenty-four hour lock-down for ten days. Id. at ¶¶ 9-10. On June 24, 2003, Anderson was accused of stealing tobacco from the commissary. Id. at ¶ 11. Anderson was handcuffed by a corrections officer ("C.O.") and escorted back to B-block for transfer to keeplock confinement.*fn3 Id. at ¶ 13. Upon arrival in B-block, Anderson was turned over to defendant C.O. Banks, who, joined by defendant C.O. Gilmore, escorted Anderson to keeplock. Id. at ¶ 14. Anderson alleges that immediately prior to being escorted, various corrections officers accused him of being friends with the Bloods. Id. at ¶ 15. These sentiments were echoed by defendants as they escorted Anderson to keeplock. Id. at ¶¶ 16-17. Just prior to his arrival at keeplock, defendants used force against Anderson. Id. at ¶¶ 18-20. Upon arrival at the Special Housing Unit ("SHU"),*fn4 Anderson was strip-searched, examined by medical staff, and photographed. Id. at ¶¶ 21-22.
On or about June 25, 2003, Anderson was served with two misbehavior reports, both dated June 24, 2003. Compl. at ¶ 23. The first accused Anderson of disobeying a direct order and stealing state property. Id. The second accused Anderson of assaulting staff, violent conduct, threats, disobeying a direct order, noncompliance with locking procedures, and disturbance. Id. The reports were written by Banks and endorsed by Gilmore. Id.
Anderson was transported to the Auburn Mental Health Unit from June 28 to July 1, 2003. Compl. at ¶¶ 25, 28. On or about July 9, 2003, after spending sixteen days in SHU, Anderson was released back into the general population when he did not receive a timely disciplinary hearing. Id. at ¶ 28; Defs. Mem. of Law at 3. This action followed.*fn5
In his complaint, Anderson alleges that defendants violated his (1) Eighth Amendment rights when they used excessive force during his transport to SHU, (2) Fourteenth Amendment due process rights by filing a false misbehavior report and confining him in SHU without a hearing, and (3) Fourteenth Amendment equal protection rights when, liberally reading Anderson's complaint, defendants based their theft accusations on the fact that they believed Anderson was associated with the Bloods. Defendants move for partial judgment on the pleadings claiming that (1) the Fifth Amendment is inapplicable here, (2) the Eleventh Amendment bars Anderson's claims against the defendants in their official capacities, (3) Anderson has not alleged a liberty interest sufficient to support his due process claim, (4) defendants were not personally involved in Anderson's due process deprivations, and (5) Anderson has failed to allege the existence of purposeful discrimination necessary for an Equal Protection violation.
"After the pleadings are closed, a motion to dismiss for failure to state a claim is properly brought as a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c)." Allan v. Woods, No. 05-CV-1280 (NAM/GJD), 2008 WL 724240, at *1 (N.D.N.Y. Mar. 17, 2008) (citing Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir. 1983)). "The test for evaluating a [Fed. R. Civ. P.] 12(c) motion is the same as that applicable to a motion to dismiss under Fed. R. Civ. P. 12(b)(6)." Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998); Burke v. New York, 25 F. Supp. 2d 97, 99 (N.D.N.Y. 1998) (Munson, J.).
Fed. R. Civ. P. 12(b)(6) authorizes dismissal of a complaint that states no actionable claim. When considering a motion to dismiss, "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). However, "a 'complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6)." Gilfus v. Adessa, No. 5:04-CV-1368 (HGM/DEP), 2006 WL 2827132, at *3 (N.D.N.Y. Sept. 30, 2006) (citing De Jesus v. Sears, Roebuck & Co. 87 F.3d 65, 70 (2d Cir. 1996) (internal quotations omitted)). Thus, dismissal is only warranted if it appears, beyond a reasonable doubt, that the non-moving party cannot prove a set of facts which would support his or her claim or entitle him or her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Harris v. City of N.Y., 186 F.3d 243, 247 (2d Cir. 1999).
When, as here, a party seeks dismissal against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has stated,
[t]here are many cases in which we have said that a pro se litigant is entitled to "special solicitude," . . . that a pro se litigant's submissions must be construed "liberally,". . . and that such submissions must be read to raise the strongest arguments that they 'suggest. . . . . At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not "consistent" with the pro se litigant's allegations, . . or arguments that the submissions themselves do not "suggest, . . ." that we should not "excuse frivolous or vexatious filings by ...