The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff pro se Keith Terrell Butler ("Butler"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendant, a DOCS employee, violated his constitutional rights under the Eighth, and Fourteenth Amendments.*fn2 Compl. (Dkt. No. 1). Presently pending is defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b). Dkt. No. 11. Butler opposes the motion. Dkt. No. 13. For the following reasons, it is recommended that defendant's motion be granted and that the complaint be dismissed.
The facts are related herein in the light most favorable to Butler as the non-moving party. See subsection II(A) infra.
On April 7, 2008, Butler was using the bathroom in his cell at Upstate Correctional Facility when LaBarge, a corrections officer, approached his cell on rounds. Compl. (5)(A); Dkt. No. 13 ¶ 3. LaBarge stopped, stared at Butler's genitalia, licked his lips, and made a lewd comment referencing Butler's genitalia. Compl. (5)(A); Dkt. No. 13 ¶ 3. LaBarge left, then returned fifteen minutes later when Butler was taken out of his cell and searched. Compl. (5)(A); Dkt. No. 13 ¶ 3. LaBarge frisked Butler, felt his genitalia, and rubbed his buttocks aggressively. Compl. (5)(A); Dkt. No. 13 ¶ 3. This action followed.
Butler claims that his Eighth Amendment rights were violated when he was sexually harassed by LaBarge. Liberally construing the complaint, Butler also makes a First Amendment claim against LaBarge for retaliation.*fn3 LaBarge moves to dismiss because (1) Butler has failed to state a claim, (2) the Eleventh Amendment and New York Correction Law bars suit, and (3) Butler's claims for emotional damages are not cognizable.
Rule 12(b)(6) authorizes dismissal of a complaint that states no actionable claim. When considering a motion to dismiss, "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). However, this "tenet . . . is inapplicable to legal conclusions[; thus, t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (holding that "entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action . . . [as] courts are not bound to accept as true a legal conclusion couched as a factual allegation.")).
Accordingly, to defeat a motion to dismiss, a claim must include "facial plausibility . . . that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556 (explaining that the plausibility test "does not impose a probability requirement . . . it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].")); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (holding that, "[o]n a motion to dismiss, courts require enough facts to state a claim to relief that is plausible . . . .") (citations omitted). Determining whether plausibility exists is "a content specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950-51.
When, as here, a party seeks summary judgment against a pro se litigant, a court must afford the non-movant special solicitude. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006); see also Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191-92 (2d Cir.2008) ("On occasions too numerous to count, we have reminded district courts that 'when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.' " (citations omitted)).
The Eighth Amendment explicitly prohibits the infliction of "cruel and unusual punishment." U.S. Const. amend. VIII. It is well settled that the "unnecessary and wanton infliction of pain on a prisoner constitutes cruel and unusual punishment in violation of the Eighth Amendment." Boddie, 105 F.3d 857, 861 (2d Cir. 1997) (citing Whitley v. Albers, 475 U.S. 312, 319 (1986)). In order to prove a violation of the Eighth Amendment, a plaintiff must satisfy both an objective and a subjective inquiry. See Trammell v. Keane, 388 F.3d 155, 161 (2d Cir. 2003). A prison official violates the standards of the Eighth Amendment when (1) the alleged punishment is "objectively, sufficiently serious" and (2) he or she acted with a "sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). Because sexual abuse by a prison official with a culpable state of mind may constitute a violation of contemporary standards of decency and cause severe harm to the prisoner, such allegations may be cognizable under the Eighth Amendment. Boddie, 105 F.3d at 861 ("[S]evere or repetitive sexual abuse of an inmate . . . can be 'objectively, sufficiently serious.' . . . "; see also Farmer, 511 U.S. at 834-35 ("[The] rape of one prisoner . . . serves no legitimate penological objective, any more than it squares with evolving standards of decency.") (internal quotation marks and citations omitted).
On the other hand, sexual harassment violates the Eighth Amendment only if the harm is "objectively, sufficiently serious." Boddie, 105 F.3d at 861. The Second Circuit has held that a small number of isolated incidents of alleged sexual abuse, including verbal harassment, may not suffice to meet the objective prong of the test or involve a harm of a federal constitutional level. Id. Further, a plaintiff must demonstrate that an incident or series of incidents were sufficiently egregious to be "objectively, sufficiently serious" to the point where such actions resulted in the denial of "the minimal civilized measure of life's necessities" and posed a substantial risk of serious harm. Id.; Trammel, 388 F.3d ...