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Rosales v. Kikendall

January 6, 2010

LUIS ROSALES, PLAINTIFF,
v.
PAUL H. KIKENDALL, DONALD SELSKY, RYAN ENGLISH, ROBERT A. KIRKPATRICK M. KEARNEY, KEN KIELISZEK, L. HIGLEY, SERGEANT ANDRUSZ, CORRECTIONAL OFFICER BENSON, CORRECTIONAL OFFICER STREIT, J. KENNEDY, LIEUTENANT KNEENAN, DEFENDANTS.



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

DECISION AND ORDER

Plaintiff, Luis Rosales, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that his constitutional rights have been violated in a number of respects in connection with certain incidents that occurred in 2006, while plaintiff was confined at Wende Correctional Facility. Defendants have moved to dismiss some of plaintiff's claims for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn1

BACKGROUND

Because this is a motion to dismiss under Rule 12(b)(6), the court assumes the truth of the allegations of the complaint. See Fitzgerald v. Barnstable School Committee, ___ U.S. ___, 129 S.Ct. 788, 792 (2009). In general, plaintiff's claims here arise out of alleged threats and harassment that he received at the hands of certain DOCS employees at Wende. Plaintiff alleges that what prompted this harassment was his position and activities as an inmate grievance representative.

Plaintiff alleges that he complained about this harassment, but that nothing was done in response. He further alleges that in October 2006, he was given a false misbehavior report, again in retaliation for his activities on behalf of other inmates.

Plaintiff alleges that at the subsequent Tier III hearing on that misbehavior report, his due process rights were violated in a number of respects. Defendant J. Kennedy, the hearing officer, found plaintiff guilty of all but one of the charges against him (which included refusing to obey a direct order and creating a disturbance), and sentenced plaintiff to four months' confinement in the Special Housing Unit ("SHU"), as well as a two-year suspension from participation in any grievance-related job.

After unsuccessfully exhausting his administrative appeals, plaintiff filed an Article 78 proceeding in state court challenging Kennedy's disposition. In October 2007, the state court reversed that disposition and ordered that Kennedy's findings be expunged from plaintiff's records. The state court decision does not appear to be in the record before me, nor is it clear what the basis for the court's decision was. Plaintiff also does not appear to allege the extent to which he served his SHU sentence by the time the state court issued its decision.

Plaintiff also alleges that in December 2007, another inmate, Chris Hynes, mailed plaintiff's wife a copy of a letter that he had been given by a third inmate, "Mohamad Abbas," Complaint ¶ 47, that Abbas had allegedly written to defendant Kearney, a DOCS Captain at Wende. In the letter, Abbas allegedly stated that he had witnessed the events leading to the misbehavior report issued against plaintiff, and that he wanted to testify at plaintiff's Tier III hearing. Plaintiff alleges that this letter was never turned over to him and that he was unaware of its existence until after his wife received a copy of it from Hynes.

Based on these allegations, plaintiff has sued twelve individual defendants, all of whom were at all relevant times employed by DOCS. The complaint asserts four causes of action, the first of which alleges that seven of the defendants retaliated against plaintiff for his participation in the DOCS grievance program as an inmate grievance representative. Complaint ¶ 49. The second cause of action alleges that defendant Kearney violated plaintiff's rights by either destroying or failing to turn over to plaintiff the letter that he allegedly received from inmate Abbas.

The third cause of action alleges that plaintiff's due process rights were violated in a number of respects in connection with his Tier III hearing. Plaintiff alleges that he was denied his rights to adequate legal assistance, to call witnesses and present evidence, to an impartial hearing officer, and to a fair and timely hearing. The fourth cause of action is asserted against several supervisory defendants, and alleges that they failed to remedy these other violations of plaintiff's rights. Plaintiff seeks $284,000 in compensatory damages, and $260,000 in punitive damages, as well as unspecified injunctive relief.

DISCUSSION

I. Motions to Dismiss Under Rule 12(b)(6): General Principles

On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the facts in the complaint are presumed to be true, and all reasonable inferences are drawn in the plaintiff's favor. See E.E.O.C. v. Staten Island Savings Bank, 207 F.3d 144, 148 (2d Cir. 2000). A complaint may be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Drake v. Delta Air Lines, Inc., 147 F.3d 169, 171 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

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 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520 (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 ...


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