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Murray v. Foster

June 11, 2010

ROBERT L. MURRAY, PLAINTIFF,
v.
C.O. FOSTER, JOHN DOE, DEFENDANTS.



The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge

REPORT-RECOMMENDATION

This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Lawrence E. Kahn, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Robert L. Murray alleges that an unnamed officer slammed his finger in a cell door and that Defendant Correctional Officer Foster filed a false misbehavior report against him. Currently pending before the Court is Defendant Foster's motion to dismiss for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6). (Dkt. No. 16.) For the reasons that follow, I recommend that Defendant's motion be granted in part and denied in part.

I. BACKGROUND

The complaint alleges that on April 23, 2009, an unnamed officer slammed Plaintiff's finger in a cell door. (Dkt. No. 1 at 5.) When Plaintiff reported this to another unnamed officer, that officer told him that "we don't like inmate[s] that write thing[s] up." Id. Plaintiff filed a grievance anyway. Id.

On May 8, 2009, Plaintiff went to sick call to complain about pain in his finger and knee. (Dkt. No. 1 at 5-6.) An unnamed "lady" asked Plaintiff how he was injured. Id. at 6. When Plaintiff told her that an officer had slammed his finger in a cell door, "she gave the officer at the desk a look and she told [Plaintiff] to get out." Id. at 5-6. Although the body of Plaintiff's complaint does not identify the officer at the desk, an attachment to the complaint shows that this officer was Defendant Foster. Id. at 11. Defendant Foster walked Plaintiff back to his cell. Id. at 6. On the way, he asked if Plaintiff had been "told about writing that up." In addition, he told Plaintiff "we do know you do lawsuit[s] [because] we see your monthly statement." Id.

Later that day, Defendant Foster issued a misbehavior report charging Plaintiff with disobeying a direct order and creating a disturbance. (Dkt. No. 1 at 11.) Defendant Foster reported that "while covering sick call [I] overheard [Plaintiff] in a loud boisterous voice shout several times 'I gonna suit your mother fuckin' asses.' I gave [Plaintiff] two direct orders to remain quiet [but] he refused by saying 'I'm gonna suit your mother fuckin' asses.' I then ordered [Plaintiff] out of the sick call area and escorted him back to his cell without further incident." Id.

Plaintiff alleges that Defendant Foster's report was false. (Dkt. No. 1 at 6.) After Defendant Foster's report, Plaintiff received more misbehavior reports from other officers. Id. at 12-13. Plaintiff did not attend the disciplinary hearings. He alleges that he refused to attend because "when they came to get me for the... hearings it was on the weekends and I know that it was no movement so I was afra[i]d so I sign[ed] a refus[a]l paper but the officer that came told me he was not going to let me go anyway." Id. at 6.

Plaintiff alleges that he received eight stitches for the injury to his finger. (Dkt. No. 1 at 7.) An attachment to the complaint shows that a May 11, 2009, x-ray of Plaintiff's right hand was normal. Id. at 14.

Defendant Foster now moves to dismiss the complaint. (Dkt. No. 16.) Plaintiff has opposed the motion. (Dkt. No. 17.)

II. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM

A defendant may move to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted.

In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (emphasis added). "Determining whether a complaint states a plausible claim for relief... requires the... court to draw on its judicial experience and common sense... [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 shown -that the pleader is entitled to relief." Id. at 1950 (internal citation and punctuation omitted).

"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). In construing the complaint, the "court may consider documents attached to the complaint as an exhibit or incorporated in it by reference." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). However, "the tenet that a court must accept as true all of the allegations contained in the complaint is ...


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