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 Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff David Barlow alleges that he was wrongfully subjected to post-release supervision. (Dkt. No. 10.) 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. 14.) For the reasons that follow, I recommend that Defendants' motion be granted, that all claims against Defendants in their official capacities be dismissed, and that Defendants be directed to answer the claims against them in their individual capacities.
Plaintiff filed the operative complaint (Dkt. No. 10) in the United States District Court for the Western District of New York on September 30, 2009. Plaintiff alleges that Defendants Brian Fischer and George B. Alexander wrongfully imposed six months of post-release supervision on him when he was released from prison on October 4, 2007. (Dkt. No. 10 at 4.) As a result, Plaintiff allegedly received an improperly long sentence after being found guilty of a parole violation. Id. Plaintiff seeks $50,000 to $75,000 in damages. Id. at 5.
On January 29, 2010, Defendants moved to (1) dismiss Plaintiff's claims against them in their official capacities; and (2) either dismiss the action for improper venue or transfer venue to this Court. (Dkt. No. 14.) On April 15, 2010, the Western District granted Defendants' motion in part and transferred the case to this District. (Dkt. No. 16.)
The matter is now before this Court for resolution of Defendants' motion to dismiss the claims brought against them in their official capacities. (Dkt. No. 14.) Plaintiff has filed opposition papers (Dkt. No. 22) that do not directly address Defendants' motion to dismiss the official capacity claims.
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 Procedure12(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.
Defendants move to dismiss Plaintiff's claims against them in their official capacities. (Dkt. No. 14.) The Eleventh Amendment has long been construed as barring a citizen from bringing a suit against his or her own state in federal court, under the fundamental principle of"sovereign immunity." See U.S. Const. amend XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."); Hans v. Louisiana, 134 U.S. 1, 10-21 (1890); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). State immunity extends not only to the states, but to state agencies and to state officers who act on behalf of the state. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf, 506 U.S. 139, 142-47 (1993); Pennhurst State Sch. & Hosp, 465 U.S. at 101-06.
The Eleventh Amendment bars suits for damages against state officials acting in their official capacities.*fn1 All DOCS employees are state officials for the purposes of the Eleventh Amendment. See e.g. Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002); Tolliver v. NY State Correctional Officers, No. 99 CIV 9555, 2000 WL 1154311, at *2 (S.D.N.Y. Aug. 14,2000)("All of the defendants in this case are state officials because they are employees of the New York State Department of Correctional Services."). Here, Plaintiff seeks only money damages. (Dkt. No. 10 at 5.) Thus, to the extent that Plaintiff's suit is brought against Defendant Fischer in his official capacity as Commissioner of the New York State Department of Correctional Services and Defendant Alexander in his official capacity as Chairman of the DOCS Division of Parole (Dkt. No. 10 at 2), it is barred by the Eleventh Amendment. Therefore, I recommend that the Court grant Defendants' motion to dismiss the claims against them in their official capacities.
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). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "[b]etter pleading will not cure it." Cuoco, 222 F.3d at 112 (citation omitted). Here, the problem with Plaintiff's official ...