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Dorsey v. Fisher

December 15, 2009

LEROY DORSEY, PLAINTIFF,
v.
BRIAN FISHER, COMMISSIONER; DALE ARTUS, SUPERINTENDENT; RACETTE, DEP. SUPT. SECURITY; AND T. LAVALLEY, FIRST DEP. SUPT., DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe, United States District Judge

DECISION and ORDER

I. Background

Plaintiff Leroy Dorsey, who is currently incarcerated at Clinton Correctional Facility, commenced this action by filing a civil rights Complaint, together with an application to proceed in forma pauperis. Dkt. Nos. 1, 2. Dorsey has also filed (1) two motions seeking injunctive relief (Dkt. Nos. 5, 10); (2) a motion asking the Court to serve papers upon the Attorney General and to investigate his claims (Dkt. No. 6); and (3) a motion to subpoena parties (Dkt. No. 7). In his Complaint, Dorsey alleges that the defendants planned an "assault hit" on him, stole his mail and property, and put "infected D.N.A." in his food. Dkt. No. 1 at 4-5. Dorsey alleges that he was being "harassed" at his previous correctional facility for filing a prior civil action. Id. at 5. When he arrived at Clinton on November 20, 2008, defendant LaValley told Dorsey that he could have a "fresh start" in Clinton but "came back later changed." Id. On December 20, 2008, Dorsey noticed that his property had been "robbed" at Clinton as well as at his previous facility "when he started to petition." Id. Dorsey claims that officers planned to have other inmates assault him and that "1st Dep. Supt. [LaValley] toured made comments, and it all began." Id. Dorsey claims that his mail was stolen and "inmates came after [him]." Id. Dorsey seeks monetary and injunctive relief. Construing Dorsey's Complaint liberally, he alleges that defendants conspired and retaliated against him, interfered with his mail, stole his personal property, and attempted to poison him in violation of his constitutional rights. For a more complete statement of Dorsey's claims, refer to the Complaint.

II. Initial Screening

Because Dorsey sets forth sufficient economic need, the Court finds that Dorsey may properly commence this action in forma pauperis. Dkt. No. 2.

Having found that Dorsey meets the financial criteria for commencing this case in forma pauperis, the Court must now consider the sufficiency of the allegations set forth in the Complaint in light of 28 U.S.C. §§ 1915(e) and 1915A. Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that -- . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."

28 U.S.C. §§ 1915(e)(2). Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the court's responsibility to determine whether the plaintiff may properly maintain the complaint that he filed in this District before the court may permit the plaintiff to proceed with this action in forma pauperis. See id.

Likewise, under 28 U.S.C. § 1915A, a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam) (Section 1915A applies to all actions brought by prisoners against government officials even when plaintiff paid the filing fee); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (stating that both sections 1915 and 1915A are available to evaluate prisoner pro se complaints).

Additionally, when reviewing a complaint, the Court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets forth a claim for relief shall contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." See Fed. R. Civ. P. 8(a)(2). The purpose of this Rule "is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable." Hudson v. Artuz, No. 95 CIV. 4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.) (other citations omitted)).

A court should not dismiss a complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Twombly v. Bell Atlantic Corp., 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft, 129 S.Ct. at 1949 (citing Twombly, 127 S.Ct. 1955). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Ashcroft, 129 S.Ct. at 1949 (citing Fed. R. Civ. P. 8(a)(2)). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft, 129 S.Ct. at 1949. Thus, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Id. (internal citations and alterations omitted). Allegations which "are so vague as to fail to give the defendants adequate notice of the claims against them" are subject to dismissal. Sheehy v. Brown, No. 08-0102-cv, 2009 WL 1762856, at *1 (2d Cir. Jun. 23, 2009).

A. Conspiracy

A conspiracy claim under § 42 U.S.C. 1983 must allege that: (1) an agreement existed between two or more state actors to act in concert to inflict an unconstitutional injury on plaintiff and (2) an overt act was committed in furtherance of that goal. Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002); see also Concepcion v. City of New York, No. 05 Civ. 8501, 2008 WL 2020363, at *5(S.D.N.Y. May 7, 2008)(affirming the continued viability of the Ciambriello standards when analyzing a conspiracy claim vis a vis a motion to dismiss).*fn1 Vague and conclusory allegations that defendants have engaged in a conspiracy must be dismissed. Ciambriello, 292 F.3d at 325; see also Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983) ("A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss."). Moreover, a Section 1983 conspiracy claim must not only allege a conspiracy, but also the "actual deprivation of constitutional rights." Romer v. Morgenthau,119 F. Supp. 2d 346, 363-64 (S.D.N.Y. 2000)(citing Malsh v. Austin, 901 F. Supp. 757, 765 (S.D.N.Y. 1995). "Thus, if a plaintiff cannot sufficiently allege a violation of his rights, it follows that he cannot sustain a claim of conspiracy to violate those rights." See id.

Dorsey alleges that defendants "put a[n] "Assault Hit' on [him]." Dkt. No. 1 at 4. Dorsey has not alleged, except in conclusory fashion, that any meeting of the minds occurred between any of the defendants to violate his rights. In fact, the Complaint does not contain any allegations that would support a "plausible" conspiracy claim involving any of the defendants. "[A]lthough a plaintiff does not need to provide detailed factual allegations, the allegations in the complaint must be 'enough to raise a right to relief above the speculative ...


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