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Norman v. Sergeant West

July 19, 2010


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


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 Norman A. Mordue, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Currently pending before the Court is Defendants' motion to dismiss for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6). (Dkt. No. 26.) For the reasons that follow, I recommend that Defendants' motion be granted.


The operative complaint in this action is the Second Amended Complaint. In that document, Plaintiff alleges that he was "unfairly marked as a black inmate who put his hands on white officers" and, as a result, received forty or fifty false misbehavior reports. (Dkt. No. 9 at 2.) When he was found guilty of the violations alleged in the misbehavior reports, he was placed in disciplinary confinement for "close to" five years and denied access to vocational programming. Id. Accordingly, he alleges, his "rehabilitation ha[s] been undermined" and he has "been rendered unemployable in today's job market." Id.

Plaintiff alleges that in December 1997, while incarcerated at Clinton Correctional Facility, he was called into an office and questioned about a letter he had sent to his family. During this meeting, "Sgt. West panicked and pulled the pin" on Plaintiff, who was then "beat down" by five or six officers and choked with a nightstick. (Dkt. No. 9 at 3.)

Plaintiff alleges that in June 2000, he "exchanged words" with two officers at Oneida Correctional Facility. (Dkt. No. 9 at 3.) One of the officers threatened to break Plaintiff's neck and grabbed him. Id. Plaintiff fought back and several officers beat him with sticks and badges. Id. As a result of this incident, Plaintiff was placed in the Special Housing Unit ("SHU"). Id. In the SHU, Plaintiff was housed with HIV positive inmates "in areas flooded with bacterimia and virimia." Id. Plaintiff lived under these conditions until 2006. Id.

Plaintiff alleges that in 2006, he sought treatment for an eye infection at the Franklin Correctional Facility clinic. (Dkt. No. 9 at 3.) The nurse on duty told a sergeant that Plaintiff had threatened her. Id. at 4. In response, the sergeant "rides in on a horse and jumps me sitting down." Id. Afterward, Plaintiff was placed in segregation for nineteen days. Id. While there he contracted a disfiguring skin and scalp condition. Id.

The Second Amended Complaint names Sgt. West, Counselor Schiff, Charlene Volpe, and Sgt. Barse, the State of New York, and several unnamed officers as defendants. (Dkt. No. 9 at 1.) Upon initial review of the Second Amended Complaint, this Court dismissed all claims against New York State with prejudice. (Dkt. No. 14 at 4-5, 7.) The remaining named Defendants now move to dismiss the Second Amended Complaint. (Dkt. No. 26.) Plaintiff has opposed the motion. (Dkt. No. 32.)


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). However, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949.

Where a pro se complaint fails to state a cause of action, the court generally "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation and citation omitted). Of course, an opportunity to amend is not required where the plaintiff has already amended the complaint. See Advanced Marine Tech. v. Burnham Sec.,Inc., 16 F. Supp. 2d 375, 384 (S.D.N.Y.1998) (denying leave to amend where plaintiff had already amended complaint once). In addition, an opportunity to amend is not ...

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