The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Before the Court is Plaintiff's motion (Docket No. 23) to amend his complaint and Defendants' cross-motion (Docket No. 24) to dismiss portions of the proposed amended complaint. For the reasons stated below, Plaintiff's application and Defendants' applications are both granted in part, and denied in part.
The Federal Rules of Civil Procedure provide that leave to file an amended complaint "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). However, leave to amend may be denied in the face of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.." Foman v. Davis, 371 U.S. 178, 182 (1962); see also United States v. Continental Illinois Nat. Bank And Trust Co., 889 F.2d 1248, 1254 (2d Cir. 1989).
Recently, the U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955 (May 21, 2007), clarified the standard to be applied to a 12(b)(6) motion:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]" as opposed to merely conceivable.) When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). On the other hand, "[c]onclusory allegations of the legal status of the defendants' acts need not be accepted as true for the purposes of ruling on a motion to dismiss." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995)(citing In re American Express Co. Shareholder Litig., 39 F.3d 395, 400-01 n. 3 (2d Cir.1994)).
Because plaintiff appears pro se, the complaint must be liberally construed in his favor, and held to "less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed. 2d 652 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir.1993). The Court interprets complaints submitted by pro se plaintiffs to raise the strongest arguments that they suggest. Burgin v. GMC, No. 04-CV-503S, 2006 WL 469355, at *3, 2006 U.S. Dist. LEXIS 16915, at *10 (W.D.N.Y. Feb. 24, 2006) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed. 2d 652 (1972)).
With respect to Plaintiff's proposed amended complaint (Docket No. 22) ("amended complaint") Defendants first move to dismiss the claims against them in their official capacities. Previously, by a Memorandum and Order entered on June 29, 2007 (Docket No. 6), the Honorable John T. Elfvin of this Court, dismissed the official capacity claims on the basis of the Eleventh Amendment. As Judge Elfvin explained, the Eleventh Amendment bars federal courts from exercising subject matter jurisdiction over claims against states absent their consent to such suit or an express statutory waiver of immunity. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98-100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Plaintiff has not provided any information that would cause the Court to reconsider Judge Elfvin's prior decision. See Virgin Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, ("The major grounds justifying reconsideration are 'an intervening change of controlling law, the availability of ...