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Dorsey v. Fisher

May 19, 2010

LEROY DORSEY, PLAINTIFF,
v.
BRIAN FISHER; DALE ARTUS; RACETTE; AND T. LAVALLEY, DEFENDANTS.



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

DECISION and ORDER

I. Background

Plaintiff Leroy Dorsey commenced this action by filing a pro se civil rights complaint. Dkt. No. 1. By Decision and Order of this Court filed on December 15, 2009 ("December Order"), the Court found that Dorsey's Complaint failed to set forth facts plausibly suggesting that any of the defendants were personally involved with the alleged violation of Dorsey's constitutional rights or that any of Dorsey's constitutional rights were violated.Dkt. No. 15 at 11. In light of his pro se status, Dorsey was afforded an opportunity to submit an amended complaint. Id. at 15. Presently before the Court is plaintiff's amended complaint. Dkt. No. 17. Plaintiff has again named Fisher, Artus, Racette, and LaValley as defendants as well as twenty-one new defendants, many of whom are John/Jane Doe defendants.*fn1 Id. at 3, 4, 7. For the reasons set forth below, the amended complaint is dismissed for failure to state a claim upon which relief may be granted under Section 1983.

II. Legal standards

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."*fn2

28 U.S.C. § 1915(e)(2). 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) (citation omitted).

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." Bell Atlantic Corp. v. Twombly, 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. Rule Civ. Proc. 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).

III. Summary of Amended Complaint

In his amended complaint, Dorsey alleges that beginning with his arrival at Clinton from November 2008 to 2010, Fisher and all named defendants violated plaintiff's civil and constitutional rights and his rights under Federal and state laws and state rules. Dkt. No. 17 at 8. Defendants falsified records; retaliated against plaintiff; denied plaintiff accessories for his breathing machine and daily medications, as well as state clothes, cosmetics, and legal personal supplies; and stole his property. Id.

Dorsey alleges that defendants Furneau, Keanan, Hicks were supervisors in charge of E-Block and allowed the correctional officers - specifically defendants John Doe A-Officer, Defire, Terry, Hardy, Farrow, D. Lucia, Beeman, John Doe, 3-11 (1-11-10); John Doe 3-11 (1-12-10); and John Doe, 3-11 (1-9 and 10-10) - to "commit numerous civil rights violations"*fn3 and state and federal crimes, including federal mail stealing and the "Crime of First Degree Murder-Att. Murder" on Dorsey. Id. at 10. Dorsey claims that the attempted murder occurred on July 13, 2009 when the E-Block defendants put "D.N.A. - Infected Body Fluid" in Dorsey's food. Id. Dorsey claims that the aforesaid E-Block defendants used their "Snitch Informer" and "Four 4 Inmate Porter's - Some Homosexuals" to violate Dorsey's rights. Id. After eating the poisoned food, Dorsey's mouth became swollen with sores and the "Medication Nurse - Escort C.O." refused to provide Dorsey with medical emergency sick call. Id.

Dorsey alleges that the defendants used inmate porters, who have been released to immigration for deportation, to pass rumors, lies, and personal information about Dorsey. Id. Defendants also let these inmate porters into Dorsey's cell when he was not there to steal Dorsey's property, plant weapons in Dorsey's cell, and infect Dorsey's food, and rewarded them for their actions against Dorsey. Id. at 10-11. Dorsey claims that the actions of the inmate porters stopped when Dorsey was confined to his cell for 24 hours. Id. at 11.

Defendants on E-Block during the 7 to 3 shift purposely opened Dorsey's cell so he could be assaulted as he slept by the "Loyal C.O. Inmates." Id. at 11. Dorsey claims that the defendants whom he collectively refers to as defendants "E-T"*fn4 are "Responsible" for the aforesaid acts. Id. at 11. Dorsey also states that defendants E-T "stole 2 vendor packages"*fn5 from Dorsey. Id. at 11.

Dorsey alleges that defendant LaValley is a "criminal." Dkt. No. 17 at 12. Dorsey complains that the Court should have, as soon as Dorsey filed this action, planted federal undercover agents "near" Dorsey to "catch" and "record" the "N.Y.S." cover-up of defendants' continuing violations of Dorsey's constitutional rights. Id.

Dorsey claims that defendant Commissioner Fisher was personally involved in wrongdoing against Dorsey because in October 2006, while Dorsey was incarcerated at Sing Sing Correctional Facility, Fisher denied Dorsey the right to participate in Family Reunion Program visits and that the denial was in retaliation for "petitioning Fisher" for entry into the program. Dkt. No. 17 at 12-13. Dorsey also alleges that Fisher illegally changed the rules of the Family Reunion Program to exclude Dorsey from the program. Id. Dorsey also seems to allege that after Fisher became acting commissioner of the Department of Correctional Services in 2007, Fisher failed to address Dorsey's letters of complaint regarding problems that Dorsey was having at Woodbourne Correctional Facility and claimed that Fisher's response was always the same -"Let the Prison ... Investigate." Id. at 13.

On December 15, 2009, defendant Russell issued Dorsey a false misbehavior report and "keeplocked" Dorsey. Dkt. No. 17 at 15. Dorsey claims that the false misbehavior report was issued in retaliation for "petitioning." Id. at 17. Defendant Russell also lied at the subsequent disciplinary hearing. Id. Dorsey alleges that on December 20, 2008, after his property was "stolen", he asked defendant Artus to send a "search team" but Artus refused the request. Dkt. No. 17 at 14. Dorsey states that the next day he realized why Artus would not send a search team because all of the E-Block cells were full of stolen property and he alleges that some of the stolen property was his because he "was hearing [his] cassette tapes." Id. Dorsey appears to allege that inmate cells on E-Block were opened so that the inmates could be assaulted while inmate porters stole their property. Id. In 2009, Dorsey stopped Artus when he was touring E-Block and told him about all of the stolen property and what was happening on E-Block, but Artus did nothing about it, and "never walked toured again." Id. Plaintiff then faced more staff set-ups and was moved to another block to "hinder prosecution" of getting the "thousands" of legal documents out to courts by his deadlines. Id. On December 25, 2009, defendant Artus "worked" as an officer as part of a job swap. Dkt. No. 17 at 15. While Artus was touring, Dorsey complained to him about legal mail that was "not confirmed mailed to the court", but Artus merely told Dorsey to write to him about it. Id. Defendant Artus said he did not know Dorsey, which was a "lie." Id.

On December 29, 2009, a hearing was held regarding the false misbehavior report issued by defendant Russell; Dorsey was found guilty of the charges based upon "lies" on the tape and because of "retaliation" by defendant Artus. Id. Dorsey claims that Artus's retaliation was not over. Id. Dorsey alleges that after his hearing, officers locked Dorsey in a "small confined shower" for thirty minutes while four young officers "trashed" his cell, threw away legal mail, and took his breathing machine accessories, daily medications, cosmetics, legal supplies, pens, and tape. Id. at 15-16.

Dorsey alleges that during either breakfast or lunch on a weekend, Dorsey tried to speak to the Deputy Superintendent of Security, who was in the cafeteria at the time, about library call-outs on weekends but "the Escort C.O." said "No", pulled Dorsey to the side and threatened him, saying he did not care about Dorsey's court deadlines. Id. at 15.

Dorsey alleges that defendant Racette is the son of a former Clinton Correctional Facility warden and makes tours of E-Block, and has received letters from Dorsey, but does nothing to help Dorsey. Dkt. No. 17 at 16. Defendant Racette is like his father and lets officers beat and kill inmates then covers up the crimes. Id. Defendant Racette "is also behind" the violations of Dorsey's constitutional rights. Id. Defendant Hardy toured Dorsey's block one day with Racette and told Racette that Dorsey was going to the Special Housing Unit. Id.

Dorsey alleges that defendant LaValley is the "son of past warden" and that his father was apparently involved with "bodies found." Dkt. No. 17 at 16. Defendant LaValley was the first head official to greet Dorsey in November 2008 and promised a "fresh start", but when Dorsey was moved to E-Block, "trouble" began. Id. In July, defendant LaValley signed off on a "stolen tape notice" which he knew was false, "which is a felony charge." Id. at 16-17.

Defendant Recore violated Dorsey's rights under the Fourteenth Amendment by releasing some personal information about Dorsey which went from officers to inmates in E-Block. Dkt. No. 17 at 17. Dorsey also claims that defendant Recore "eavesdropped" on Dorsey's legal conference call to a Judge and an attorney general. Id.

While not entirely clear, it appears that Dorsey alleges that defendant Derkin allowed defendant Russell to falsely accuse Dorsey of misbehavior. Dkt. No. 17 at 17. Dorsey alleges that defendant Defire was the property draft officer at Clinton and that when Dorsey was drafted to Clinton, some of his draft bags had been opened and some of his property stolen. Id. at 18.

Dorsey claims that between 2008 and 2010, as a result of the foregoing, he was subjected to cruel and unusual punishment, denied due process and equal protection, denied the opportunity to "petition the government," purposely contaminated with "infected D.N.A." and food poisoning, and denied medical attention after his face and mouth became swollen inside and out. Dkt. No. 17 at 18. Dorsey claims that no security was called to investigate his attempted murder and the crime was covered-up. Id. Dorsey seeks substantial monetary relief and transfer to Fishkill Correctional Facility. Dkt. No. 17 at 19. Dorsey also wants the Court to "take away" defendants' immunities and fifth amendment protections because they are criminals involved in "Enterprise Corruption." Id.

IV. Review of Amended Complaint

In reviewing Dorsey's amended complaint, the Court recognizes that it must construe pro se complaints liberally. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Even after allowing for due deference to Dorsey's pro se status, Dorsey's conclusory allegations are insufficient to meet the standards set forth in either Ashcroft or Twombly. Dorsey's amended complaint also fails to give defendants "fair notice" of the grounds upon which Dorsey's claims are based. Significantly, the amended complaint's failure to provide such notice followed a district court order that, in dismissing Dorsey's original complaint, explained its deficiencies and provided Dorsey with an opportunity to cure the defects. The order also advised Dorsey that failure to do so would result in dismissal. Dorsey has not complied with the Court's directions set forth in the December Order. The amended complaint contains a litany of conclusory statements which amount to nothing more than legal conclusions and hollow allegations that all of the defendants conspired to harm Dorsey by stealing his property, attempting to murder him, retaliating against him, and denying him due process and medical care. See generally Dkt. No. 17.

The Court finds that Dorsey's allegations fail to state a claim upon which relief may be granted and in many instances are frivolous, both legally and factually, and the amended complaint is therefore subject to dismissal pursuant to 28 U.S.C. ยงยง 1915(e) and 1915A(b). Any vague ...


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