The opinion of the court was delivered by: Hood, J.
Philip Yates commenced this action on October 16, 2008. An amended complaint was filed on April 30, 2009 alleging violations of Yates's constitutional rights, as well as violations of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act. (Dkt. No. 48) The matter is before the Court on Defendants' motions to dismiss the amended complaint (Dkt. Nos. 53 and 63). Fully briefed, they are ripe for decision.
This motion to dismiss under Fed. R. Civ. P. 12(b)(6) was submitted by Defendants New York State Department of Correctional Services ("DOCS"), Picente, Richardson, Simmons, Hayes, Abbis, Clark, Smith, Dr. Ramineni, Ferraro, DeBrascio, Drayton, Youmans, Fischer, Hulihan and Phillips. The allegations in the amended complaint directed at each movant will be separately addressed.
The amended complaint alleges violations of Plaintiff's First, Fourth, Fifth, Eighth and Fourteenth Amendment rights. In assessing Plaintiff's amended complaint as to the moving Defendants, the teachings of Ashcroft v. Iqbal, --U.S.--, 129 S.Ct. 1937, 1949 (2009), guide the Court. There, the Supreme Court wrote:
We turn to respondent's complaint. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929, the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S., at 555, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at 557, 127 S.Ct. 1955.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id., at 570, 127 S.Ct. 1955. 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. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " Id., at 557, 127 S.Ct. 1955 (brackets omitted).
To allege a constitutional violation under 42 U.S.C. § 1983, a pleading must state facts sufficient to support a finding that the defendant was personally involved in the alleged violation. See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006). For this reason, liability of a state official cannot be established under the doctrine of respondeat superior. Iqbal, 129 S.Ct. at 1948.
The amended complaint contains no allegations whatsoever against Picente. Hence, Plaintiff has failed to state a cause of action against this Defendant.
The amended complaint alleges that Richardson and Simmons "unlawfully retaliated against the Plaintiff for exercising his right to petition the government for redress, when she (DeBrascio) wrongfully removed Plaintiff from Alcohol and Substance Abuse Treatment..." This allegation pertains only to DeBrascio, not Richardson and Simmons. Hence, Plaintiff has failed to state a claim against them.
In his amended complaint, Plaintiff alleges that Inmate Records Coordinator Hayes failed to give him a copy of his welding certificate in an attempt to hinder his preparation for his appearance before the merit board. As Plaintiff has no constitutional right to appear before the merit board, he obviously has no right to prepare to appear before the merit board. See Edwards v. Ladlair, No. 9:07-CV-59, 2008 US Dist LEXIS 59489, at *8-11 (N.D.N.Y. 2008).
While the terms "retaliation" and "retaliatory" are used by Plaintiff in an apparent attempt to somehow link this otherwise benign alleged conduct of defendant Hayes with an unconstitutional motive, see Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (plaintiff bears the burden to show that he engaged in constitutionally protected conduct, and that the protected conduct was a substantial or motivating factor in prison officials' decision to take adverse action against him), the use of such "buzz words" for that purpose does not cure a pleading defect such as the one herein. See Barr v. Abrams, 810 F.2d 358, 362 (2d Cir. 1986) (the Second Circuit has repeatedly held that complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning" ); see also, e.g., Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997)("unsupported, speculative, and conclusory" allegations should be dismissed); Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) ("[c]laims by prisoners that particular administrative decisions have been made for retaliatory purposes are prone to abuse. Virtually every prisoner can assert such a claim as to every decision which he or she dislikes."); Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (where allegations of retaliation and conspiracy are "wholly conclusory," the complaint "can be dismissed on the pleadings alone"); Justice v. Coughlin, 941 F. Supp. 1312, 1316 (N.D.N.Y. 1996) ("In recognition of the reality that retaliation claims can be fabricated easily, [inmates] bear a somewhat heightened burden of proof, and dismissal can be granted if the claim appears insubstantial"). As this is the situation in this instance, Plaintiff's claims against Hayes will be dismissed.
The amended complaint alleges that defendant Abbis ordered Plaintiff to enter the welding program, which was supervised by defendant Clark, without investigating whether the plaintiff was already a "master welder". (Dkt. No. 48 at ¶18). These allegations fail to allege any constitutional violation and therefore Plaintiff's claims against Abbis and Clark will be dismissed.
The only mention of defendant Smith in the amended complaint is an allegation that "Smith denied Plaintiffs (sic) abilities, makeing (sic) him to (sic) do a non needed vocational, in which plaintiff had to walk up 3 flights of stairs". (Dkt. No. 48 at ¶19). The most favorable reading of this allegation appears to allege an ADA/Rehabilitation Act claim against Smith, which is not permissible against an individual defendant, as discussed below. Since the single factual allegation ...