The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff pro se John Solomon ("Solomon"), 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 defendants Brian Fischer ("Fischer"), Commissioner of DOCS, and Darwin LaClair ("LaClair"), Superintendent of Franklin Correctional Facility ("Franklin"), violated his constitutional rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments. Compl. (Dkt. No. 1). Presently pending is the defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Dkt. No. 19. Solomon opposes the motion. Dkt. No. 26. For the following reasons, it is recommended that defendants' motion be granted.
The facts are related herein in the light most favorable to Solomon as the non-moving party. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir.1999).
At all relevant times, Solomon was housed at Franklin. Compl. at 8. Solomon states that several DOCS employees at Franklin, who are not parties to this action, conspired against and issued him false misbehavior reports. Id. Solomon specifically alleges that a non-party correction officer, Bordeau, participated in a racial conspiracy which included spreading false rumors about Solomon. Id. at 7. Solomon also asserts that non-party officers plotted "to get [Solomon] fired and fabricate... misbehavior reports..." Id.
Additionally Solomon claims that non-parties Lavoie and Carrigan "filed a misbehavior report against [him] stat[ing] that inmate was out of place and... fail[ed] to report to work...." Compl. at 7. Solomon contends that Lavoie and Carrigan "were maliciously try [sic] to convict [him] in the hearing, knowing that they were wrong...." Id. During the subsequent disciplinary hearing the hearing officer found Solomon guilty of being out of place. Id. Nothing in the record indicates that Solomon appealed the disposition of his hearing.
Solomon also alleges that in December 2008, another non-party correction officer, T. Agan, questioned Solomon about his presence in the television room when Solomon was "on disposition". Id. at 8. Solomon refused to answer "such [a] frivolous question" and, subsequently, his identification card was confiscated and he was sent to his cube.*fn2 Id.
In the two grievance documents which Solomon attached to the complaint, he alleged that non-party correction officer Raven and other inmates "[we]re working together to fabricate a complaint against [him]...." Compl. at 10, 11. In a "Request for Interview or Information" dated December 4, 2008, Solomon also complained that Agan "filed a frivolous misbehavior report [which] stated that [he] was out of place on [December 12, 2008] and question[ed]... about something ignorant which did not take place...." Id. at 12. Further, in grievance number FKN-8590-08, Solomon alleged that "there [wa]s a conspiracy going around to... writ[e] frivolous misbehavior report based upon... my sentence....". Id. at 13. In the grievance, Solomon described the alleged malfeasance committed by Carrigan, Bordeau, and Lavoie that is discussed above. Id. at 13-14.
In response to Solomon's grievances, DOCS conducted an investigation into Solomon's complaints. Compl. at 15. LaClair denied Solomon's grievance, determining that it lacked merit. Id. at 15. LaClair concluded that Solomon did 'not provide any evidence to substantiate his allegation that there [wa]s a conspiracy against him." Id. Additionally, LaClair determined that the misbehavior reports were written pursuant to practicing "sound security measures." Id. In response to Solomon's administrative appeal, the Central Office Review Committee upheld LaClair's decision. Id. at 2. This action followed.
Solomon asserts multiple causes of action. Specifically, Solomon alleges that his First Amendment rights were violated when he was written false and retaliatory misbehavior reports. Solomon also contends that his Fourteenth Amendment rights were violated when he suffered from an equal protection violation because of his race.*fn3 Defendants seek dismissal of all claims contending that 1) Solomon has failed to state a claim; 2) Solomon failed to establish the personal involvement of defendant Fisher; and 3) both Fisher and LaClair are entitled to qualified immunity.
Under Fed.R.Civ.P. 12(b)(6), a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). 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, --- U.S. ---, 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 legal conclusion couched as a factual allegation.")).
Accordingly, to defeat a motion to dismiss, a claim must include allegations sufficient to establish "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..." More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]" assuming, of course, that all the allegations in the complaint are true. Id. at 1965 (citations omitted). What this means, on a practical level, is that there must be "plausible grounds to infer [actionable conduct]," or, in other words, "enough fact to raise a reasonable expectation that discovery will reveal evidence of [actionable conduct]." Id.;see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (holding that, "[on] 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 judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has stated,
[t]here are many cases in which we have said that a pro se litigant is entitled to "special solicitude," that a pro se litigant's submissions must be construed "liberally," and that such submissions must be read to raise the strongest arguments that they suggest. At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not "consistent" with the pro se litigant's allegations or arguments that the submissions themselves do not "suggest," that we should not "excuse frivolous or vexatious filings by pro se litigants" and that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law.
Id. (internal citations and footnote omitted); 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 ...