The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
This pro se prisoner civil rights action, commenced pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), has been referred to me for Report and Recommendation by the Honorable Norman A. Mordue, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Douglas R. McCarroll alleges that Defendant Y. Matteau, a guard at FCI Ray Brook, violated his constitutional rights by sexually assaulting him and harassing him and that he was motivated, in part, by Plaintiff's status as a jailhouse lawyer. Currently pending before the Court is Defendant's motion to dismiss for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6). (Dkt. No. 13.) For the reasons that follow, I recommend that Defendant's motion be deemed a partial motion to dismiss and be granted, that Defendant be directed to respond to Plaintiff's retaliation, Fourth Amendment, equal protection, and infliction of emotional distress claims, and that the Court sua sponte dismiss Plaintiff's substantive due process, procedural due process, Sixth Amendment, Ninth Amendment, and state court claims for sexual assault, negligence, and assault and battery.
The complaint alleges that Plaintiff was transferred to FCI Ray Brook on April 18, 2006, and assigned to the Mohawk housing unit. (Dkt. No. 1 ¶ 7.) In May 2006, Plaintiff was given a storage room in the housing unit for his legal papers and books. (Dkt. No. 1 ¶ 8.) Beginning in June 2006, Defendant Y. Matteau began coming into the storage room while Plaintiff was there to ask him questions about why he had so much legal work. During these encounters, Defendant "appeared agitated that the Plaintiff had a storage room for his legal work." Defendant also made "wise cracks about the Plaintiff's pro se litigant status." (Dkt. No. 1 ¶¶ 9-10.)
On one occasion in the fall of 2006, Defendant would not let Plaintiff eat dinner. (Dkt. No. 1 ¶ 11.)
In April 2007, Defendant was assigned to Plaintiff's housing unit. (Dkt. No. 1 ¶ 12.) On April 14, 2007, Plaintiff, who had just showered and was wearing only a bathrobe, was in his cell with his cell mate waiting for the morning count. (Dkt. No. 1 ¶¶ 13-15.) Defendant opened the cell door and ordered Plaintiff's cell mate to step out. (Dkt. No. 1 ¶ 16.) When Plaintiff's cell mate complied, Defendant stepped into the cell and closed the door behind him. (Dkt. No. 1 ¶ 17.) Defendant ordered Plaintiff to turn around for a pat down. Plaintiff complied. As he conducted the pat down, Defendant squeezed Plaintiff's penis and said "Oh, you got shortchanged." (Dkt. No. 1 ¶ 18.) When Plaintiff protested, Defendant said "I'm not through with you yet, not by a longshot. This is just the beginning. You think you're so cool because you['re] the Legal Beagle here. Well ya know what? I own you now. And if you tell anyone or write me up for it, nobody will believe you and you'll be put in the hole." (Dkt. No. 1 ¶ 19.) Defendant then exited the cell, instructed Plaintiff's cell mate to step back inside, and locked the door. (Dkt. No. 1 ¶ 20.)
Plaintiff was away from his cell until later that afternoon. When he returned, he learned that Defendant had spent "almost the entire afternoon . . . shaking down" his cell. (Dkt. No. 1 ¶ 21.) Plaintiff's cell was "destroyed." (Dkt. No. 1 ¶ 22.) When he asked Defendant "if this was business or personal . . . the defendant replied 'a little business but mostly personal.'" Id.
Plaintiff alleges that between April 2007 and April 2008, Defendant engaged in a campaign of harassing him. (Dkt. No. 1 ¶ 23.) On one occasion, Defendant pointed his gun at Plaintiff and smiled. (Dkt. No. 1 ¶ 24.) On many occasions, Defendant used his forefinger and thumb to make a sign as if to mean "little" when he encountered Plaintiff. (Dkt. No. 1 ¶¶ 25, 29, 40, 45, 49, 53, 56, 60, 63, 65, 67, 75, 78, 86, 98, 103, 107.) On many occasions, Defendant made a kissing gesture with his lips at Plaintiff. (Dkt. No. 1 ¶¶ 26, 30, 31, 33, 36, 38, 41, 42, 47, 52, 55, 58, 61, 64, 66, 67, 69, 72, 74, 76, 77, 79, 81, 83, 87, 89, 93, 96, 99, 101, 102, 105, 125, 126, 127.) On many occasions, Defendant referred to Plaintiff as "my little man" and made other references to the size of Plaintiff's genitals. (Dkt. No. 1 ¶¶ 28, 32, 34, 35, 37, 44, 50, 51, 62, 69, 70, 73, 84, 104, 129.) Several times, Defendant referred to Plaintiff as "sweet cheeks." (Dkt. No. 1 ¶ 85, 88, 90, 91, 126.) On one occasion, Defendant said "Little man thinks he's a lawyer, does he?" (Dkt. No. 1 ¶ 39.) Several times, Defendant smiled or smirked at Plaintiff. (Dkt. No. 1 ¶¶ 43, 48, 54, 59, 68.) Several times, Defendant denied Plaintiff entry to a gate used by other inmates because "little dicks don't get a pass." (Dkt. No. 1 ¶¶ 46, 57, 71.)
On December 26, 2007, Plaintiff returned to his cell to find Defendant 'shaking it down.' (Dkt. No. 1 ¶ 80.) Defendant told Plaintiff to come into the cell. When Plaintiff did so, Defendant shut the door behind him. Id. Defendant told Plaintiff "this cell needs cleaning. If you don't get it to the legal limit, I will. I don't mind the legal work because you['re] a hot shot legal beagle. But the other shit has to go . . . When I come back, it better be right." Id. Defendant instructed Plaintiff to turn around and put his arms out. Defendant then placed both hands on Plaintiff's buttocks, squeezed them, and said "now you['re] my sweet cheeks. Don't forget, no one will believe you if you say something and you'll go to the hole if you do." Id. Defendant left Plaintiff's cell. Id.
On February 28, 2008, Plaintiff returned to his cell to find it locked. Defendant said he would unlock it. (Dkt. No. 1 ¶ 94.) Defendant unlocked the cell, instructed Plaintiff to come inside, closed the door behind Plaintiff, told Plaintiff to turn around, and said "I need to squeeze those buns again little man." Id. Plaintiff refused. Defendant turned red in the face and said "Big mistake. Now I'm really going to fuck with you . . . Now I'll write you a shot and this ain't over, not by a long shot." Defendant left, carrying Plaintiff's mattress. Id.
Later that day, Plaintiff was issued a misbehavior report written by Defendant accusing him of altering or destroying government property. (Dkt. No. 1 ¶ 95.) At the disciplinary hearing, the charge was reduced to "Prohibited Act Code violation of a #305." Plaintiff was found guilty and sanctioned with 90 days' loss of commissary privileges. A few weeks later, the charge was expunged from Plaintiff's central file. (Dkt. No. 1 ¶ 97.)
On March 4, 2008, Defendant shook down Plaintiff's cell and removed two pillows. (Dkt. No. 1 ¶ 98.)
On March 21, 2008, Plaintiff was in the law library when another inmate told him that Defendant had been in Plaintiff's cell for most of the morning "destroying" it. The inmate said that when he asked Defendant what he was doing, Defendant said "It's my last day in the Unit and McCarroll's due. I'm going to fuck with him all day." (Dkt. No. 1 ¶ 108.) When Plaintiff returned to his cell that afternoon, it "looked like a cyclone hit it." (Dkt. No. 1 ¶ 111.) Plaintiff found Defendant and asked him why he stole a green bell pepper from his cell. Defendant replied "this all could have been avoided if only you would have let me get a feel last month." (Dkt. No. 1 ¶ 116.) Later Plaintiff discovered that in addition to the pepper, Defendant had stolen a book catalog from Plaintiff's cell. Id.
On March 22, 2008, Defendant attempted to prevent Plaintiff from returning to the Education Unit. An Education Unit staff member intervened and Defendant told Plaintiff " I guess little dicks get a pass today." (Dkt. No. 1 ¶¶ 122-124.)
On April 14, 2008, Defendant "threw the Plaintiff's chair [out] of the tier." (Dkt. No. 1 ¶ 128.)
On May 5, 2008, a lieutenant interviewed Plaintiff regarding a grievance he had filed against Defendant. The lieutenant told Plaintiff that every officer has an inmate that he is allowed to harass, and Defendant had chosen Plaintiff. The lieutenant told Plaintiff that Defendant's conduct did not rise to the level of misconduct or harassment. (Dkt. No. 1 ¶ 130.)
Plaintiff alleges that Defendant conducted his campaign of harassment because "Plaintiff is a pro se litigant and helps other prisoners with their legal work." (Dkt. No. 1 ¶ 131.) Plaintiff alleges that Defendant retaliated against him for exercising his rights under the First and Sixth Amendments and violated the Eighth Amendment by sexually assaulting him. Id. Plaintiff alleges that Defendant committed the state law torts of negligence, infliction of emotional distress, and assault and battery. (Dkt. No. 1 ¶ 142.) He alleges that Defendant violated his rights under the Fourth Amendment, the Due Process Clause, and the Equal Protection Clause. Id. Plaintiff requests $4 million in compensatory damages and $4 million in punitive damages. (Dkt. No. 1 at 31.)
Defendant now moves to dismiss the complaint. (Dkt. No. 13.) Plaintiff has opposed the motion. (Dkt. No. 17.) Defendant ...