The opinion of the court was delivered by: Laura Taylor Swain, Usdj
Pro se Plaintiff Timothy Green ("Plaintiff"), brings this action pursuant to 42 U.S.C. § 1983. Plaintiff asserts that, while he was in the custody of the Defendant New York City Department of Corrections ("NYC DOC"), Defendants Officer Bee ("Bee"), Captain Gaselle ("Gaselle"), Officer Braxton ("Braxton") and Warden Frank Squillante ("Squillante") (collectively, "Defendants") violated his constitutional rights when, after he discovered that he had erroneously been designated as gang-affiliated and brought the error to Defendants' attention, the designation was not corrected. Defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff's Amended Complaint.*fn1 The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.
Two Defendants, Bee and Gaselle, have not yet been served with the summons and original complaint and it is not always clear in Defendants' papers whether the motion is made on behalf of all Defendants or only the served Defendants, but it is not necessary to resolve whether the motion to dismiss is interposed on behalf of Bee and Gaselle as well, since Defendants' arguments are equally applicable to Bee and Gaselle. Therefore, for the sake of simplicity, the Court uses the term "Defendants" to apply to all Defendants.
The Court has considered thoroughly all of the parties' submissions. For the following reasons, Defendants' motion to dismiss the Amended Complaint is granted.
The following relevant facts are alleged in Plaintiff's Amended Complaint unless otherwise stated, and are taken as true for purposes of this motion practice.*fn2 Plaintiff is not and was never affiliated with a gang called "the Netas." However, on or about January 2, 2006, while Plaintiff was incarcerated at Otis Bantum Correctional Center ("Otis Bantum"), a facility run by NYC DOC, a prison officer informed Plaintiff that the prison had classified him as "Security Risk Gang-Related" ("SRG status"), because of his supposed affiliation with the Netas. The officer directed Plaintiff to speak with Defendant Officer Bee, who was in charge of security at Otis Bantum, in order to correct the mistake.
After Plaintiff met with Bee*fn3 and told Bee that he was not a gang member and had never been affiliated with the Netas, Bee accessed the prison's computer system and discovered that Plaintiff's name and identification number were erroneously associated with a picture of another inmate. Bee explained that Plaintiff had been under SRG status since 1995, that there was a mistake and that she would "take care of" the problem.
For the next three weeks, Plaintiff did not receive word from Bee, and his SRG status remained unchanged. He then spoke with the grievance coordinator at Otis Bantum, who advised Plaintiff to speak to Defendant Captain Gaselle, who also worked in security. Plaintiff then met with Gaselle, who had already learned of Plaintiff's situation from Bee. Gaselle informed Plaintiff that the problem would "be taken care of." The SRG status was not removed.
On April 11, 2006, Plaintiff filed a complaint with the City of New York Department of Investigations ("DOI") concerning his erroneous SRG status. Soon after, Bee informed Plaintiff that a commissioner with the DOI had notified Bee of Plaintiff's complaint, and Bee again assured Plaintiff that she would "take care of" the issue, but she did not correct the error.
During the time that these alleged interactions took place at Otis Bantum, Plaintiff resided in "higher classification" housing.*fn4
On April 26, 2006, Plaintiff was transferred from Otis Bantum to Eric M. Taylor Center ("Eric M. Taylor"), another NYC DOC facility. Upon arrival, Plaintiff inquired as to whether he was designated with SRG status and was told that he was not. He was also cleared to work outdoors.
However, on May 8, 2006, Plaintiff's outdoor work clearance was revoked and he was moved to "higher classification" housing and prevented from working altogether. He was then informed that he was classified as SRG status. On May 11, 2006, Plaintiff explained his situation to Defendant Officer Braxton, who worked in security at Eric M. Taylor. Braxton ran a computer check and found, as Bee had several months previously, that Plaintiff's name and identification number were erroneously associated with the picture of another inmate. Braxton informed Plaintiff that she would "take care of this," and Plaintiff gave her some paperwork containing documentation of Plaintiff's attempts to resolve his SRG situation. On May 18, 2006, Braxton informed Plaintiff that Defendant Warden Squillante had received the paperwork. Furthermore, she confirmed that Plaintiff had been erroneously under SRG classification since 1995, and told him that the SRG status would be removed on May 24, 2006. At the time of Plaintiff's filing of the Amended Complaint, August 29, 2006, his SRG status remained the same.*fn5
According to the Amended Complaint, because of Plaintiff's SRG status at Otis Bantum, and for most of the time at Eric M. Taylor, Plaintiff was "harassed," subjected to random strip searches, and prevented from working. Plaintiff also complains of emotional distress and harm to his reputation. Plaintiff further alleges generally that his safety was put in jeopardy because of the SRG classification, though there is no allegation that Plaintiff, or any other person classified as SRG, has suffered physical harm as a result of such a classification or alleged gang affiliation.*fn6
In an affidavit submitted with his opposition papers Plaintiff avers that, as a result of his widely-known SRG status-specifically, the belief that he is a member of the Netas-he has been subjected to threats on his life from gang members as well as from prison staff. (Aff. of Timothy Green dated Nov. 2006 ("Green Aff.") ¶ 5.) Plaintiff alleges that he has been approached on more than one occasion with "life threatening [g]estures" and that, on one occasion, an inmate member of another gang told Plaintiff to move off of Rikers Island (where the facilities are located) because, no matter where Plaintiff went, his life would be threatened. (Id.) As an example of how others might easily associate Plaintiff with the Netas, Plaintiff avers that, at church services, inmates alleged to be Neta members are visibly segregated from other inmates. (Id.) Plaintiff further alleges in his affidavit that the SRG status of any inmate may be ascertained through "FOIL," to which staff members have access, and that staff members with allegiances to various gangs will perform FOIL inquiries on gang members' behalf to unearth the gang affiliations of other inmates ...