The opinion of the court was delivered by: Honorable Paul A. Crotty, U.S.D.J
Pro se plaintiff Julio Isley Smith is an inmate in the New York State correctional system. He commenced this lawsuit under 42 U.S.C. § 1983 against nine corrections officers and sergeants and the Deputy Superintendent at Green Haven Correctional Facility ("Green Haven"), contending principally that the defendants had engaged in a course of harassment directed against him in retaliation for his having complained about staff misconduct. In substance he alleges that various of the defendants made oral threats, destroyed or stole his property (including legal papers), and successfully pursued a baseless disciplinary proceeding against him. He seeks damages and injunctive relief.
Following the filing and service of an amended complaint, defendants have moved to dismiss the newest pleading. For the reasons that follow, we recommend that the motion be granted in part and denied in part.
Plaintiff's original complaint was received by the Pro Se Clerk on September 7, 2007 and dismissed by the court sua sponte three months later, with leave to file a more detailed amended complaint. (Order dated Dec. 14, 2007). Plaintiff filed his amended complaint on February 25, 2008 and eventually served it on the defendants. They in turn moved to dismiss.
The amended complaint names as defendants Officers Janet Maypes-Rhynders, Aaron D. Rapelee, Jeffrey W. MacIssaac, Chris A. Fredricks, Charles Lawfer, Daniel Melious, and James G. Weckesser; Sgts. Alfred P. Montegari and James I. Hillman; and Deputy Superintendent Robert Cunningham. The pleading alleges in fairly non-specific terms that, in retaliation for complaints that plaintiff had made about various Department of Correctional Services ("DOCS") staff members -- including many of the defendants -- a number of these officers and sergeants at one time or another have approached plaintiff and either threatened him or engaged in verbal abuse (Am. Compl. ("Compl.") ¶¶ 14, 18, 21-25), and that several of them have told other inmates that plaintiff was a child molester, thereby endangering his safety. (Compl. ¶¶ 15, 17, 26, 27). He also asserts that at one point several defendants seized some of his legal papers and "trashed" his property during a retaliatory cell search (Compl. ¶ 28), that someone -- he infers it was one or more of the defendants -- stole some memoirs that he was writing (Compl. ¶ 19), that one defendant destroyed a typewriter that he owned and a second one deliberately "flooded out" other property belonging to plaintiff (Compl. ¶ 16-17), and that at a later time the corrections officer who had destroyed plaintiff's typewriter also destroyed his legal files as he returned from a court appearance. (Compl. ¶ 30). In addition, plaintiff insists that two of the defendants filed baseless disciplinary charges against him that triggered a Tier III disciplinary hearing by a biased hearing officer, who convicted him on unspecified charges and imposed a 365-day term in the Special Housing Unit ("SHU") with other unspecified sanctions. (Compl. ¶ 29).
Based on these allegations, the complaint defines two claims. One is for retaliation. Plaintiff claims that the defendants were retaliating against him for his having filed a complaint with the DOCS Inspector General when he was incarcerated at the Great Meadow Correctional Facility and for additional grievances that he allegedly submitted, or attempted to submit, through the prison grievance system at Green Haven, as well as for oral complaints that he made about the conduct of staff members. (Compl. ¶¶ 31-32). The other claim is, in substance, for denial of liberty and property without due process, apparently premised on the disciplinary sanctions imposed on him. (Compl. ¶ 33).
Defendants seek dismissal, contending that plaintiff fails to state a claim for retaliation or due process. Alternatively, they argue that they are entitled to dismissal on the basis of a qualified-immunity defense. Plaintiff has filed a memorandum opposing the motion.
A. Rule 12(b)(6) Criteria
We start by noting the standards that the movant must meet in order to obtain dismissal for failure to state a claim. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984); accord, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Patane v. Clark, 508 F.2d 106, 111 (2d Cir. 2007).
In assessing such a motion, the court must assume the truth of the well-pled factual allegations of the complaint and must draw all reasonable inferences against the movant. See, e.g., Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006); Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996). Moreover, when the complaint has been authored, as here, by an untutored pro se plaintiff, the court is to interpet the pleading with particularly heightened solicitude, reading it "to raise the strongest arguments it suggests." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007); see, e.g., Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). In this regard, the court may treat the pro se plaintiff's response to the dismissal motion as a de facto amendment to, or clarification of, his complaint. See, e.g., Hernandez v. Goord, 312 F. Supp. 2d 537, 542-43 (S.D.N.Y. 2004) (citing, inter alia, Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987)); accord, Warren v. District of Columbia, 353 F.3d 36, 37-38 (D.C. Cir. 2004) (citing Anyanwutaku v. Moore, 151 F.3d 1053, 1058 (D.C. Cir. 1998)).
Unlike the traditional test on a Rule 12(b)(6) motion, which required that the complaint not be dismissed 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," Still, 101 F.3d at 891 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), under Twombly a purported claim will not survive unless it is apparent from the face of the complaint that the claim is at least "plausible." Twombly, 550 U.S. at 559; see also Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007), cert. granted, 128 S.Ct. 2931 (2008). Twombly does not impose "a universal standard of heightened fact pleading, but . . . instead requir[es] 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." Iqbal, 490 F.3d ...