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Marrero v. Kirkpatrick

October 5, 2009

MARTIN MARRERO, PLAINTIFF,
v.
ROBERT A. KIRKPATRICK, DONNA NORTHRUP, SGT. SINDONI KAREN BELLAMY, DEFENDANTS.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

Plaintiff, Martin Marrero, appearing pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), asserts claims against four individual defendants--Robert Kirkpatrick, Donna Northrup, Richard Sindoni, and Karen Bellamy--arising out of certain incidents that occurred during 2007, while plaintiff was confined at Wende Correctional Facility.

Defendants, all of whom at all relevant times were DOCS officials or employees, have moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss all of plaintiff's claims, other than his First Amendment claims against defendants Northrup and Sindoni. For the reasons that follow, defendants' motion is granted.

DISCUSSION

I. "Failure to Protect" Claims

At several points of his complaint, plaintiff alleges that he is asserting claims against defendants Kirkpatrick and Bellamy based on their "failure to protect" plaintiff. See Complaint ¶¶ 49, 51. In that regard, the Eighth Amendment imposes a duty on prison officials "to take reasonable measures to guarantee the safety of inmates in their custody." Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825, 832-33 (1994)).

It is clear from plaintiff's complaint, however, and from his response to defendants' motion, that plaintiff is not alleging that he suffered any physical harm as a result of defendants' alleged failure to "protect" him, and in fact he is not alleging that defendants failed to protect his safety at all. Plaintiff's assertion that defendants "failed to protect" him does not relate to any threat to his safety, but to defendants' failure to remedy the other defendants' alleged constitutional violations alleged in the complaint. Those allegations are addressed below, in the context of Kirkpatrick's and Bellamy's personal involvement in the alleged constitutional violations. To the extent, then, that the complaint can be read as asserting any Eighth Amendment "failure to protect" claims, those claims are dismissed for failure to state a cognizable claim.

II. Equal Protection Claims

Plaintiff also alleges, in conclusory fashion, that Kirkpatrick and Bellamy have violated his equal protection rights. See Complaint ¶¶ 49, 51. To state a viable claim for denial of equal protection, a plaintiff generally must allege "purposeful discrimination... directed at an identifiable or suspect class." Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995), or that he has been intentionally treated differently from others similarly situated, with no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003).

Plaintiff has alleged no such facts here. His response to defendants' motion also articulates no sound basis for such a claim. See Dkt. #10 at 2. This claim is therefore dismissed.

III. Conspiracy Claims

Plaintiff alleges that defendants Northrup and Sindoni conspired to prevent or impede a proper or complete investigation of plaintiff's administrative grievances. See Complaint ¶ 50. I construe those allegations to assert a claim under 42 U.S.C. § 1985. See Lashley v. Wakefield, 367 F. Supp. 2d 461, 472 (W.D.N.Y. 2005).

Conclusory allegations that a defendant conspired to violate a plaintiff's civil rights are not sufficient to make out a § 1985 claim. See Walker v. Jastremski, 430 F.3d 560, 564 n. 5 (2d Cir. 2005), cert. denied, 547 U.S. 1101 (2006); Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997); Koulkina v. City of New York, 559 F.Supp.2d 300, 318 (S.D.N.Y. 2008). That is particularly so in the aftermath of the Supreme Court's ruling in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), which heightened the pleading requirements under the Federal Rules of Civil Procedure. See In re Elevator Antitrust Litigation, 502 F.3d 47, 50 (2d Cir. 2007) ("We affirm the district court's dismissal of the conspiracy claims because plaintiffs are unable to allege facts that would provide plausible grounds to infer an [unlawful] agreement" among the defendants).

In the case at bar, plaintiff has presented no more than conclusory allegations of a conspiracy between Northrup and Sindoni. In the absence of any factual allegations to support such a claim, plaintiff's conspiracy claims must be dismissed. See Sudler v. City of New York, No. 08 Civ. 11389, 2009 WL 2365335, at *3 (S.D.N.Y. July 31, 2009) ("The complaint's entirely conclusory allegations of [a] conspiracy... amount to nothing more than bald allegations ...


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