UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
January 15, 2009
KARO BROWN, PLAINTIFF,
ROBERT OUTHOUSE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Karo Brown alleges that Defendants Robert Outhouse (Cayuga County Sheriff), Correctional Officer Walborn of the Cayuga County Jail, and two or more unnamed officers violated his rights under the United States Constitution and New York state laws by assaulting him, denying him prompt medical care, and conducting a procedurally flawed disciplinary hearing*fn1. Currently pending before the Court is Defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 8.) For the reasons that follow, I recommend that Defendants' motion be granted in part.
A. Summary of Plaintiff's Complaint
Liberally construed, Plaintiff's complaint alleges as follows: In 2004, Plaintiff was detained at Cayuga County Jail pending trial on federal charges. (Dkt. No. 1 at ¶ 5.) On November 15, 2004, Plaintiff was removed from the general population and questioned about "possession of salt packets." (Dkt. No. 1 at ¶ 13.) After the questioning, Plaintiff was "assaulted by Correctional Officer Walborn and other unknown Correctional Officers," who shoved Plaintiff into a tray cart, knocked him to the floor, kicked him and beat him with "unknown objects." (Dkt. No. 1 at ¶¶ 12-13, 15.) Plaintiff suffered lacerations to his face and scalp and abrasions to his legs, torso, face, head and shoulders. (Dkt. No. 1 at ¶ 17.)
Plaintiff was then placed in solitary confinement. (Dkt. No. 1 at ¶ 12, 20.) Plaintiff "did not eat any food while he was in solitary confinement because he had requested for medical attention." (Dkt. No. 1 at ¶ 20.) Plaintiff did not receive any medical attention until two or three days later. (Dkt. No. 1 at ¶ 20.)
Sometime after the assault, Plaintiff was "required to appear at a disciplinary hearing without any prior notice of the disciplinary hearing." (Dkt. No. 1 at ¶ 14.) At the hearing, Plaintiff asked to call other prisoners to testify as eyewitnesses, but the hearing officer denied the request. (Dkt. No. 1 at ¶ 22-23.) Plaintiff was then "kept in solitary confinement status for a couple of months." (Dkt. No. 1 at ¶ 23.)
Plaintiff claims that Defendants' conduct violated his rights under the United States Constitution and New York state law. (Dkt. No. 1 at 1.) Plaintiff states that he still suffers great pain and stiffness and believes that he risks permanent disability in his left shoulder if he is not promptly provided with physical therapy. (Dkt. No. 1 at ¶¶ 27, 29.) He requests 10 million dollars in damages. (Dkt. No. 1 at 7.)
B. Summary of Grounds in Support of Defendants' Motion
Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6.). (Dkt. No. 8.) Defendants argue that (1) Plaintiff's New York state law claim for assault and battery is barred by the applicable statute of limitations; (2) Plaintiff's New York state law claim for negligence is barred by the applicable statute of limitations; and (3) Plaintiff's Eighth Amendment claim for denial of medical care fails to state a cause of action because it does not adequately allege that Defendants were personally involved*fn2. (Dkt. Nos. 8, 18.)
C. Summary of Plaintiff's Response to Defendants' Arguments
In response to the motion to dismiss, Plaintiff argues that he timely filed his complaint. (Dkt. No. 15.)
II. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). It has long been understood that a defendant may base such a motion on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Federal Rule of Civil Procedure 8(a)(2);*fn3 or (2) a challenge to the legal cognizability of the claim.*fn4
Rule 8(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) [emphasis added]. By requiring this "showing," Rule 8(a)(2) requires that the pleading contain a short and plain statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."*fn5 The main purpose of this rule is to "facilitate a proper decision on the merits."*fn6 A complaint that fails to comply with this rule "presents far too heavy a burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of [plaintiff's] claims."*fn7
The Supreme Court has long characterized this pleading requirement under Rule 8(a)(2) as "simplified" and "liberal," and has repeatedly rejected judicially established pleading requirements that exceed this liberal requirement.*fn8 However, it is well established that even this liberal notice pleading standard "has its limits."*fn9 As a result, several Supreme Court and Second Circuit decisions exist, holding that a pleading has failed to meet this liberal notice pleading standard.*fn10
Most notably, in the recent decision of Bell Atlantic Corporation v. Twombly, the Supreme Court, in reversing an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1, "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 127 S.Ct. 1955, 1968-69 (2007).*fn11
Rather than turning on the conceivability of an actionable claim, the Court clarified, the Fed. R. Civ. P. 8 "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74.
More specifically, the Court reasoned that, by requiring that a pleading "show that the pleader is entitled to relief," Rule 8(a)(2) requires that the pleading give the defendant "fair notice" of (1) the nature of the claim and (2) the "grounds" on which the claim rests. Id. at 1965, n.3 [citation omitted]. While this does not mean that a pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." Id. [citations omitted]. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id. at 1965 [citations omitted]. What this means, on a practical level, is that there must be "plausible grounds to infer [actionable conduct]," or, in other words, "enough fact to raise a reasonable expectation that discovery will reveal evidence of [actionable conduct]." Id.
As have other Circuits, the Second Circuit has repeatedly recognized that the clarified plausibility standard that was articulated by the Supreme Court in Bell Atlantic governs all claims, not merely antitrust claims brought under 15 U.S.C. § 1 (as were the claims in Bell Atlantic).*fn12 The Second Circuit has also recognized that this plausibility standard governs claims brought even by pro se litigants (although the plausibility ofthose claims is be assessed generously, in light of the special solicitude normally afforded pro se litigants).*fn13
It should be emphasized that Rule 8's plausibly standard, explained in Bell Atlantic, was in no way retracted or diminished by the Supreme Court's decision (two weeks later) in Erickson v. Pardus, in which the Court stated, "Specific facts are not necessary" to successfully state a claim under Rule 8(a)(2). Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) [citation omitted]. That statement was merely an abbreviation of the often-repeated point of law--first offered in Conley and repeated in Bell Atlantic--that a pleading need not "set out in detail the facts upon which [the claim is based]" in order to successfully state a claim. Bell Atlantic, 127 S.Ct. 1965, n.3 (citing Conley v. Gibson, 355 U.S. 41, 47 ). That statement in no way meant that all pleadings may achieve the requirement of giving a defendant "fair notice" of the nature of the claim and the "grounds" on which the claim rests without ever having to allege any facts whatsoever.*fn14 There must still be enough facts alleged to raise a right to relief above the speculative level to a plausible level, so that the defendant may know what the claims are and the grounds on which they rest (in order to shape a defense).
Having said all of that, it should also be emphasized that, "[i]n reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor."*fn15 "This standard is applied with even greater force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se."*fn16 In other words, while all pleadings are to be construed liberally under Rule 8(e), pro se civil rights pleadings are to be construed with an extra degree of liberality.*fn17
For example, the mandate to read the papers of pro se litigants generously makes it appropriate to consider a plaintiff's papers in opposition to a defendant's motion to dismiss as effectively amending the allegations of the plaintiff's complaint, to the extent that those factual assertions are consistent with the allegations of the plaintiff's complaint.*fn18 Moreover, "courts must construe pro se pleadings broadly, and interpret them to raise the strongest arguments that they suggest."*fn19 Furthermore, when addressing a pro se complaint, generally a district court "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated."*fn20 Of course, an opportunity to amend is not required where the plaintiff has already amended his complaint.*fn21 In addition, an opportunity to amend is not required where "the problem with [plaintiff's] causes of action is substantive" such that "[b]etter pleading will not cure it."*fn22
However, while this special leniency may somewhat loosen the procedural rules governing the form of pleadings (as the Second Circuit very recently observed),*fn23 it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Rules 8, 10 and 12.*fn24 Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Rules 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.*fn25 Stated more plainly, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended."*fn26
A. Plaintiff's Assault and Battery Claim Is Barred By The Applicable Statute of Limitations
Plaintiff alleges that Defendants committed "the tort of assault and battery." (Dkt. No. 1 at 1.) Defendants argue that this claim is barred by the applicable statute of limitations. (Dkt. Nos. 8-6 at 1-2 and 18-2 at 1.) Defendants are correct. Defendants cite the one-year statute of limitations in New York Civil Practice Law and Rules § 215(3). However, a slightly longer statute of limitations applies. New York General Municipal Law §§ 50-i and 50-e require plaintiffs suing counties or their employees to file a notice of claim within ninety days and commence the action within one year and ninety days of the events giving rise to the claim. Lieber v. Village of Spring Valley, 40 F. Supp. 2d 525, 533 (S.D.N.Y. 1999) (collecting cases). Here, however, even if Plaintiff had complied with the notice of claim requirements and was entitled to the longer statute of limitations, his assault and battery claim would be barred. The complaint alleges that Plaintiff was assaulted on November 18, 2004. (Dkt. No. 1 at ¶ 14.) Plaintiff did not file his complaint until November 2, 2007. (Dkt. No. 1. ) Therefore, I recommend that Plaintiff's New York state law cause of action for assault and battery be dismissed.
B. Plaintiff's Negligence Claim Is Barred By The Applicable Statute of Limitations
Plaintiff alleges that Defendants committed "the tort of... negligence." (Dkt. No. 1 at 1.) Defendants argue that this claim is barred by the applicable statute of limitations. (Dkt. Nos. 8-6 at 2 and 18-2 at 1-2.) Defendants are correct. The one year and ninety day statute of limitations for actions against county employees, discussed above, also applies to negligence actions. Baker v. Dorfman, 239 F.3d 415, 419 (2d Cir. 2000). Plaintiff did not file his complaint within one year and ninety days of the events he describes in the complaint. Therefore, I recommend that Plaintiff's New York state law cause of action for negligence be dismissed.
C. Plaintiff Has Not Adequately Alleged That Defendants Were Personally Involved In The Denial of Medical Care
Defendants argue that Plaintiff has not stated a cause of action for denial of medical care against them because the complaint does not adequately allege that Defendants were personally involved with any deprivation. (Dkt. Nos. 8-6 at 2-3 and 18-2 at 2-5.) Defendants are correct.
"'[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 [2d Cir. 1991]).*fn27 In order to prevail on a cause of action under 42 U.S.C. § 1983 against an individual, a plaintiff must show some tangible connection between the alleged unlawful conduct and the defendant.*fn28 If the defendant is a supervisory official, a mere "linkage" to the unlawful conduct through "the prison chain of command" (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct.*fn29 In other words, supervisory officials may not be held liable merely because they held a position of authority.*fn30 Rather, supervisory personnel may be considered "personally involved" only if they (1) directly participated in the violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring.*fn31
Here, the complaint does not include any allegations linking Defendant Walborn to the alleged denial of medical care. Rather, the allegations against Defendant Walborn involve only the assault. Therefore, I recommend that the Eighth Amendment cause of action against Defendant Walborn for denial of medical care be dismissed with leave to amend.
Regarding Defendant Outhouse, the complaint alleges merely that he is "responsible for arranging the placement of pretrial and convicted federal prisoners" and "for medical care generally and for arranging for specialized medical care in/outside the prison." (Dkt. No. 1 at ¶¶ 25-26.) The complaint does not allege that Defendant Outhouse directly participated in the violation, failed to remedy that violation after learning of it through a report or appeal, created, or allowed to continue, a policy or custom under which the violation occurred, was grossly negligent in managing subordinates who caused the violation, or exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Therefore, I recommend that the Eighth Amendment cause of action against Defendant Outhouse for denial of medical care be dismissed with leave to amend.
ACCORDINGLY, it is
RECOMMENDED thatDefendants' motion to dismiss for failure to state a claim (Dkt. No. 8) be GRANTED IN PART. It is recommended that (1) Plaintiff's New York state law causes of action for assault and battery and negligence be dismissed as barred by the statute of limitations; (2) Plaintiff's Eighth Amendment denial of medical care claim be dismissed with leave to amend for failure to allege Defendants' personal involvement; and (3) the motion be DENIED to the extent that it sought dismissal of Plaintiff's constitutional claims as barred by the statute of limitations.
ANY OBJECTIONS to this Report-Recommendation must be filed with the Clerk of this Court within TEN (10) WORKING DAYS, PLUS THREE (3) CALENDAR DAYS from the date of this Report-Recommendation (unless the third calendar day is a legal holiday, in which case add a fourth calendar day). See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); N.D.N.Y. L.R. 72.1(c); Fed. R. Civ. P. 6(a)(2), (d).
BE ADVISED that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but was not, presented to the Magistrate Judge in the first instance.*fn32
BE ALSO ADVISED that the failure to file timely objections to this Report-Recommendation will PRECLUDE LATER APPELLATE REVIEW of any Order of judgment that will be entered. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of H.H.S., 892 F.2d 15 [2d Cir. 1989]).