The opinion of the court was delivered by: Pitman, United States Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE RICHARD J. HOLWELL, United States District Judge,
Plaintiff, proceeding pro se, commenced this action on May 16, 2008. On September 8, 2008, before any defendants had answered and in conformity with the then-current provisions of Federal Rule of Civil Procedure 15, plaintiff filed an amended complaint. On or about March 7, 2009, without the consent of the defendants or leave of court, plaintiff served and attempted to file a second amended complaint. Defendants Kenneth Cho, Ileana Pena, Sharon Fields, Donell Scott, Michael J. Garcia and James N. Cross (the "Federal Defendants") deemed this second amended complaint served on March 7, 2009 to be a motion to file a second amended complaint, and by notice of motion dated April 23, 2009 (Docket Item 30), the Federal Defendants moved to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and opposed the filing of the second amended complaint. On April 26, 2009, apparently realizing that the second amended complaint that he filed on March 7, 2009 was procedurally defective because it was not filed with his adversary's consent or leave of the Court, plaintiff moved for leave to file the second amended complaint (Docket Item 34).
By motion dated January 14, 2010 (Docket Item 47), plaintiff moved again to amend his complaint and sought to withdraw his April 26, 2009 motion to amend; the pleading attached to this motion was also denominated as the "Second Amended Complaint" ("1-14-10 2d Am. Compl."). The second amended complaint that was the subject of plaintiff's April 2009 motion to amend was identical in all material respects to the 1-14-10 2d Am. Compl. except that the former added Armando Perlaza and the then-current United States Attorney for the Southern District of New York, Lev L. Dassin while the latter dropped Dassin as a defendant.
Because the substantive allegations of the 1-14-10 2d Am. Compl. are substantially identical to those set forth in the complaints to which the Federal Defendants' motion is addressed and because the standard for evaluating the futility of a proposed amended pleading is identical to the standard for assessing a Rule 12(b)(6) motion, Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 244 (2d Cir. 2007); Estate of Ratcliffe v. Pradera Realty Co., 05 Civ. 10272 (JFK), 2007 WL 3084977 at *4 (S.D.N.Y. Oct. 19, 2007) (Keenan, D.J.), in the interests of judicial economy, I shall deem the arguments made in the Federal Defendants' motion to be addressed to both the amended complaint and the 1-14-10 2d Am. Compl.
For the reasons set forth below, I respectfully recommend that the Federal Defendants' motion to dismiss (Docket Item 30) be granted, that plaintiff's January 2010 motion to amend (Docket Item 47) be denied and that plaintiff's application to withdraw his April 26, 2009 motion to amend (Docket Item 34) be granted. I further recommend that plaintiff's remaining claims be dismissed as a matter of discretion.
Pro se plaintiff Moustapha Magassouba, an inmate currently in the custody of the Federal Bureau of Prisons, brings this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)*fn2 , alleging that he was the victim of a number of civil rights violations while he was in the custody of defendants.
On August 12, 2003, plaintiff was indicted on one count of conspiring to violate the narcotics laws of the United States in violation of 21 U.S.C. § 846. He was detained at the Metropolitan Correctional Center ("MCC") in New York, New York on this charge from May 9, 2005 to June 20, 2008.
Plaintiff alleges that on March 27, 2006, defendant Kenneth Cho, a dentist at the MCC, unnecessarily and improperly removed a tooth causing him "gum infection and severe pain" (1-14-10 2d Am. Compl. at 6). He also alleges that Cho continuously denied him dental care during his incarceration at the MCC.
Beginning on January 25, 2008, plaintiff was placed in administrative detention for three weeks. He alleges that after he was moved from his cell, defendant Ileana Pena, a corrections officer at the MCC, did not "pack" his property for over five days. As a result, plaintiff claims that other inmates broke into his locker and stole property allegedly valued at approximately four hundred dollars. Plaintiff further alleges that on April 28, 2008, he was threatened by his cellmate, and defendant Sharon Fields, a counselor at the MCC, failed to separate the two men. According to plaintiff, her failure to separate plaintiff from his cellmate placed him at "an unreasonable risk of future harm" (1-14-10 2d Am. Compl. at 7-8).
On May 25, 2008 inmates Goldson Hugh, Barris Larry, and Thomas Garfield allegedly attacked plaintiff with a broomstick, a knife, and a wooden brush, causing him serious injuries. Proposed defendant Armando Perlaza, another corrections officer at the MCC, allegedly witnessed the attack and did not take any action to prevent plaintiff's injuries. Plaintiff also alleges that two days later, Perlaza told the plaintiff to throw trash on the floor and then "refused to collect [the] trash" (1-14-10 2d Am. Compl. at 8).
On June 3, 2008, a week after he was allegedly injured by the inmate defendants, plaintiff alleges that Officer Donnell Scott handcuffed him with his hands behind his back, despite plaintiff's protestations that handcuffing him in that manner caused him pain, and that Scott then "denied" him a scheduled medical visit (1-14-10 2d Am. Compl. at 10). Plaintiff alleges that on the following day, Scott put him in a dirty cell with a plumbing problem and that, despite his complaints, he was not moved to a new cell until two days later. Plaintiff also alleges that on June 9, 2008, Scott handcuffed him and left him in the shower for over three hours without a change of clothes and that a week later Scott "denied him of a protection for his hand from getting wet by water" (1-14-10 2d Am. Compl. at 10).*fn3 Finally, he alleges that Scott constantly abused him, took items from his cell, and instructed the commissary officer not to attend to him.
Plaintiff also describes various incidents that he does not ascribe to any particular person. He states that he was placed in administrative detention for 21 days without explanation, received inadequate and unsanitary food, was not given a "diabetic snack" and "starved . . . until his blood sugar go lower than the normal level" (1-14-10 2d Am. Compl. at 11). He also alleges that his personal clothing was given to charity without his consent, that due to a false accusation by an officer, his telephone and commissary privileges were restricted and that he was generally denied the right to prison employment during his incarceration. Furthermore, he alleges that unidentified "M.C.C. Officials" failed to give him proper treatment for injuries resulting from the May 25, 2008 altercation (1-14-10 2d Am. Compl. at 10). Finally, he states that he notified James N. Cross, the warden of the MCC, of his arbitrary placement in administrative detention and other acts by corrections officers that placed him at an "unreasonable risk of harm" and that Cross "acted deliberately indifferent" (1-14-10 2d Am. Compl. at 4, 11).
Plaintiff states that on February 21, 2008, Cross instructed him to "file a tort claim" in connection with his claim for loss of property while he was in administrative detention, and told him "that the prisoners exhaustion is [i]napplicable to some of his claims" (1st Am. Compl. at 11; 1-14-10 2d Am. Compl. at 12)*fn4 Plaintiff did in fact file an FTCA administrative tort claim in connection with his allegedly stolen property on February 21, 2008 which was denied on August 28, 2008. He also filed an administrative tort claim with respect to his dental treatment on May 8, 2008 that was denied on May 14, 2008 and a BP-8 informal administrative complaint form with respect to the same incident on June 12, 2008. Plaintiff also filed a BP-8 form in connection with his allegations against Scott on June 10, 2008 and an administrative tort claim on September 12, 2008 with respect to the May 25, 2008 altercation with other inmates. He does not allege that he filed any other grievances or administrative claims with respect to the matters described in the 1st Am. Compl. or 1-14-10 2d Am. Compl.
Plaintiff's 1st Am. Compl. alleges that, based on the foregoing events, defendants Cho, Pena, Fields, Scott and Cross violated his constitutional rights under the Fifth and Eighth Amendments. Plaintiff further alleges that Michael J. Garcia, the former United States Attorney for the Southern District of New York, is responsible for the "deliberate indifference" of "his [e]mployees and subordinates" and has, thus, violated plaintiff's rights under the Fifth, Eighth and Fourteenth Amendments. Plaintiff also asserts claims against Hugh, Larry and Garfield, the inmates who allegedly assaulted plaintiff. Plaintiff now moves to amend his complaint to include claims against Perlaza, who was previously named as a John Doe defendant, for violating unspecified constitutional rights.
A. Standards Applicable to a Motion to Dismiss and the Federal Defendants' Claim that the Proposed Amended Complaint is Futile
The standards applicable to a motion to dismiss pursuant to Rule 12(b)(6) and an argument that a proposed amended pleading is futile are well settled and require only brief review:
When deciding a motion to dismiss under Rule 12(b)(6), [the court] must accept as true all well-pleaded factual allegations of the complaint and draw all inferences in favor of the pleader. See City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986); Miree v. DeKalb County, 433 U.S. 25, 27 n.2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977) (referring to "well-pleaded allegations"); Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). "'[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statement or documents incorporated in it by reference.'" Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)(quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)). The Court also may consider "matters of which judicial notice may be taken." Leonard [F.] v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (citing Allen v. WestPoint-Pepper[e]ll, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). In order to avoid dismissal, a plaintiff must do more than plead mere "[c]onclusory allegations or legal conclusions masquerading as factual conclusions." Gebhardt v. Allspect, Inc., 96 F. Supp. 2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm. Moore, Moore's Federal Practice ¶ 12.34[a][b] (3d ed. 1997)).
Hoffenberg v. Bodell, 01 Civ. 9729 (LAP), 2002 WL 31163871 at *3 (S.D.N.Y. Sept. 30, 2002) (Preska, D.J.); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007); Johnson & Johnson v. Guidant Corp., 525 F. Supp. 2d 336, 345-46 (S.D.N.Y. 2007).
The Supreme Court has recently clarified the proper mode of inquiry for evaluating a motion to dismiss pursuant to Rule 12(b)(6), utilizing as a starting point the principle that "[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a).
[I]n Bell Atl[antic] Corp. v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson that "a complaint should not be dismissed for failure to state a claim 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." 550 U.S. at 562. Instead, to survive a motion to dismiss under Twombly, a ...