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Brandon Holmes v. Brian Fischer

January 4, 2011


The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge




This matter was referred to the undersigned for all pre-trial proceedings by Honorable William M. Skretny, on July 19, 2010. The matter is presently before the court on Defendant's motion for More Definite Statement, to Strike Complaint, and to Dismiss. (Doc. No. 3).*fn1


Plaintiff, Brandon Holmes ("Holmes" or "Plaintiff"), currently incarcerated at Sing Sing Correctional Facility ("Sing Sing"), and proceeding pro se, commenced this § 1983 action on September 22, 2009, alleging violations of his federal civil rights and pendent New York common law claims based on events that occurred while Plaintiff was incarcerated at the Elmira Correctional Facility ("Elmira"), and Southport Correctional Facility ("Southport"). Plaintiff asserts eight claims for relief, including (1) Eighth Amendment violations based on conditions of confinement in Elmira's Special Housing Unit ("SHU"), and Southport's SHU, denial of medical treatment at Elmira and Southport, and being subjected to repeated unlawful urinalysis testing ("First Claim"); (2) violations of the Fourth, Eighth and Fourteenth Amendments in being subjected to non-random urinalysis drug testing based on unfounded suspicion ("Second Claim"); (3) conspiracy to violate Plaintiff's Fourth, Eighth and Fourteenth Amendment rights by ordering Plaintiff to submit to unlawful urinalysis drug testing ("Third Claim"); (4) violations of Plaintiff's First Amendment right to seek redress of grievances ("Fourth Claim"); (5) Defendants harassed and humiliated Plaintiff by subjecting him to unlawful urinalysis drug testing ("Fifth Claim"); (6) conspiracy to harass and humiliate Plaintiff by subjecting him to unlawful urinalysis drug testing ("Sixth Claim"); (7) confinement in SHU to prevent Plaintiff from pursuing due process claims ("Seventh Claim"); and (8) denial of medical care for Plaintiff's heart condition ("Eighth Claim").

The Complaint was subsequently served upon fifteen named defendants, including New York State Department of Correctional Services ("DOCS") and DOCS employees ("Defendants"). Defendants have not answered the Complaint but, on July 2, 2010, filed a motion (Doc. No. 3) ("Defendants' Motion") seeking an order directing (1) Plaintiff serve and file, pursuant to Fed.R.Civ.P. 12(e) ("Rule 12(e)"), a more definite statement, or (2) striking from the Complaint, pursuant to Fed.R.Civ.P. 12(f) ("Rule 12(f)"), redundant, immaterial, and impertinent matter, or (3) dismissing the action, pursuant to Fed.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)"), and 8 ("Rule 8"), for failing to comply with the rules of pleadings such that the Complaint fails to state a claim for which relief can be granted, or (4) ordering Plaintiff to serve and file an amended complaint complying with Rules 8, 12(e), 12(f), and Fed.R.Civ.P. 10 ("Rule 10").

Defendants' Motion is supported by Defendants' Memorandum of Law in Support of Motion for a More Definite Statement Pursuant to Rule 12(e), to Strike Pursuant to Rule 12(f), and/or to Dismiss Pursuant to Rule 12(b)(6) (Doc. No. 4) ("Defendants' Memorandum").

On August 30, 2010, Plaintiff filed a Brief in Opposition to Defendant Rule 8 Motion to Dismiss (Doc. No. 10) (Plaintiff's Memorandum"). On September 17, 2010, Defendants filed in further support of Defendants' Motion the Reply Declaration of Assistant New York Attorney General Kim S. Murphy ("Murphy") (Doc. No. 13) ("Murphy Reply Declaration"). On September 30, 2010, Plaintiff filed a Rebuttal to Defendant Declaration of September 17, 2010 in Further Support of Their Rule 8, 12, 12e, 12f, 12b, etc. Motion to Dismiss (Doc. No. 14) ("Plaintiff's Sur-Reply"). Oral argument was deemed unnecessary.

Based on the following, Defendants' Motion is DENIED as to the request for a more definite statement pursuant to Rule 8, should be DENIED as to the requests to strike redundant, immaterial, and impertinent matter from the Complaint pursuant to Rule 12(f), and ordering Plaintiff to file a serve an amended complaint complying with Rules 8, 10, 12(e) and 12(f), and to dismiss the Complaint pursuant to Rule 12(b)(6) for failing to state a claim.


The Complaint contains a pro se form, an additional 127 fact paragraphs, and eight causes of action. A summary of the 40-page Complaint follows.*fn3

Plaintiff alleges he has no documented history of drug use, yet, while incarcerated at Elmira, was subjected to non-random urinalysis on five occasions, including March 10, 2007, June 2007,*fn4 July 14, 2007, July 27, 2007, and February 2, 2008, based only on unfounded "suspicion" during which a DOCS staff employee ordered Plaintiff to pull down his pants and underwear and urinate into a cup, and then observed Plaintiff's genitals to insure compliance with the urine collection procedure. Complaint ¶¶ 1-2. According to Plaintiff, each urinalysis procedure yielded negative results. Id. ¶ 3. Plaintiff maintains that being observed by unidentified Elmira corrections officers while urinating has so upset Plaintiff as to cause Plaintiff to suffer from insomnia, erectile dysfunction, nausea, headaches, loss of energy, burning eyes and dizziness for weeks following each urinalysis. Id. ¶ 8-9. Plaintiff asserts that each urinalysis procedure was based upon unfounded "suspicion," provided by a unidentified "reliable confidential informant," who told DOCS staff that Plaintiff used drugs, id. ¶ 3, although Plaintiff steadfastly denies ever illegally using narcotics. Id. ¶ 5.

After being subjected to urinalysis in June 2007, July 2007 and February 2008, Plaintiff attempted to obtain documentation supporting the need for each urinalysis test by submitting Freedom of Information Law ("FOIL") requests to Defendant Elmira Records Access Officer Palmiera ("Palmiera"), who refused to supply the requested information. Complaint ¶ 4. In February 2008, Plaintiff filed an inmate grievance ("first grievance") and several complaints asserting that the procedures Defendants employed in connection with the urinalysis tests amounted to sexual harassment. Id. at ¶ 5. During a hearing on Plaintiff's first grievance, Defendants informed Plaintiff that urinalysis did not amount to sexual harassment, that there was no procedure by which Defendants could assess the reliability of informants prior to ordering a urinalysis, but that Defendants relied on the urinalysis results to confirm the informant's reliability. Id.

¶ 6. Defendants also informed Plaintiff that Elmira had no procedure in place to test the reliability of confidential informants before subjecting inmates to urinalysis, but the drug test itself confirmed or denied an informant's reliability. Id. Defendants were skeptical of concerns Plaintiff expressed, analogizing the urinalysis procedures to strip searches and frisks, followed by weeks of insomnia and anxiety that a urinalysis may produce a "false positive" result. Id. ¶¶ 7-10.

In May 2008, Plaintiff complained to Defendant Elmira Deputy Security Superintendent Wenderlich ("Wenderlich"), that urinalysis requests based on reports received from unknown confidential informants were being "rubber-stamped" by DOCS Lieutenant Zigenfris ("Zigenfris").*fn5 Complaint ¶¶ 23-26. Wenderlich took no action in response to Plaintiff's complaints about Zigenfris's urinalysis authorizations, asserting Wenderlich considered Zigenfris's approval of the urinalysis requests mere mistakes, and refusing to implement a urinalysis policy to avoid similar mistakes in the future. Id. ¶¶ 26-28(d).

When Plaintiff's first grievance was denied, Plaintiff filed an appeal to DOCS Central Office Review Committee ("CORC"),*fn6 and on July 25, 2008, within 72 hours of filing the appeal, Plaintiff was subjected to a random urinalysis, which Plaintiff maintains was to retaliate against Plaintiff for filing the appeal. Complaint ¶ 12-13. Plaintiff filed another inmate grievance ("second grievance") the same day. Id. ¶ 14. Defendants, based on information provided by a confidential informant that Plaintiff was using and selling drugs, subjected Plaintiff to another urinalysis on August 27, 2008. Id. ¶¶ 15-16. Although Plaintiff's urinalysis was negative, the urinalysis of another inmate, Gilmore, tested at the same time, was positive. Id. ¶¶ 19-20. At Gilmore's disciplinary hearing regarding Gilmore's positive urinalysis, it was revealed that the August 27, 2008 urinalysis tests of both Plaintiff and Gilmore were not properly ordered, the requests having been made by an unknown official who forged another DOCS official's signature. Id. ¶¶ 20-23. On August 30, 2008, Plaintiff was ordered to submit to another "random" urinalysis, despite having no history of drug abuse. Id. ¶ 29.

Plaintiff maintains that without a urinalysis policy, falsification of grounds for urinalysis to harass inmates is common. Complaint ¶¶ 30-31. Both inmates and DOCS employees allegedly engage in providing false information targeting certain inmates for urinalysis. Id.

In October 2008, Plaintiff saw Dr. Brasselman about his insomnia and resulting nausea, headaches, burning eyes, aggravation of old gunshot wound, inability to exercise, and appetite loss, all of which Plaintiff attributed to the repeated urinalysis testing. Complaint ¶ 34. Dr. Brasselman determined Plaintiff also suffered from hypertension. Id.

In November 2008, Plaintiff received anonymous death threats from confidential informants, but refused Defendants' offer of protective custody. Complaint ¶ 32. On November 17, 2008, an unnamed inmate accosted Plaintiff, wielding a metallic instrument with which the inmate cut Plaintiff's head and face. Id. at ¶ 35. Because Plaintiff defended himself against the attack by kicking, punching and rushing the inmate, Plaintiff was charged with flighting, weapons possession, refusing a direct order and violent conduct as a result of the incident. Id. ¶¶ 35-36. During a disciplinary hearing on the charges, conducted by Wenderlich between November 26 to December 3, 2008 ("the disciplinary hearing"), Wenderlich refused to consider Plaintiff's self-defense argument, denied Plaintiff's request to view video surveillance of the incident, and refused to construe the incident as related to the repeated anonymous drug use allegations and recent death threats against Plaintiff. Id. ¶¶ 36-46. As a result of the disciplinary hearing, Plaintiff was sentenced to 18 months of confinement in special housing unit ("SHU"), allegedly to retaliate against Plaintiff for complaining about the urinalysis testing. Id. ¶¶ 47-50. Plaintiff subsequently filed three administrative appeals of the penalty on December 7 and December 9, 2008 and January 1, 2009, id. ¶ 53-54, but, on January 20, 2009, Plaintiff's conviction on the prison disciplinary charges was upheld by Defendant SHU/Disciplinary Director Norman Bezio ("Bezio"). Id. ¶ 57.

During Plaintiff's confinement to the SHU, he suffered from chest pains, problems breathing and shoulder pain from procedures requiring Plaintiff be handcuffed from behind through a slot in the cell door prior to being moved from his SHU cell.

Complaint ¶¶ 61-70. The Elmira medical staff allegedly ignored Plaintiff's complaints and refused to order medical examinations. Id.

On December 22, 2008, Plaintiff, then housed in Elmira's SHU, was transferred to Southport where Plaintiff was also confined in SHU for the duration of his 18-month sentence. Complaint ¶ 64. While housed in Southport's SHU, Plaintiff underwent an EKG in April or May 2009.*fn7 Id. ¶ 71. Plaintiff's cell in Southport's SHU was continually illuminated, 24 hours a day, impeding Plaintiff's sleep, resulting in fatigue, nausea, burning eyes, weakness, and an inability to exercise. Id. ¶ 78. Plaintiff alleges that multiple inmate grievances and complaint about the 24-hour illumination of his prison cell were ignored. Id. ¶¶ 79-95. Plaintiff claims Southport officials also failed to provide Plaintiff with appropriate winter clothing, which resulted in hand and foot pain and Plaintiff's inability to continue exercising outdoors. Id. ¶¶ 96-98. Southport medical staff allegedly also denied Plaintiff medical exams, including a screening to determine the condition of Plaintiff's arteries, and medical relief for hand and foot pain, eczema, hypertension and high cholesterol. Id. ¶¶ 73-76, 102-104, 108-127. Plaintiff, however, has not been subjected to any urinalysis, random or otherwise, since being transferred to Southport on December 22, 2008. Id. ¶ 107.


Defendants' Motion essentially challenges the Complaint as so vague and ambiguous as to render it impossible to discern the basis for Plaintiff's claims.

Defendants request a court order granting various and alternative forms of relief, including (1) directing Plaintiff to serve and file, pursuant to Rule 12(e), a more definite statement; (2) striking from the Complaint, pursuant to Rule 12(f), redundant, immaterial, impertinent matter which fails to comport with federal pleading requirements; (3) dismissing the action, pursuant to Rules 8 and 12(b)(6), for failing to comply with pleading requirements and, thus, failing to state a claim; and (4) directing Plaintiff to serve and file an amended complaint complying with Rules 8, 10, 12(e) and 12(f). In support of the motion, Defendants characterize the Complaint as "voluminous," "vague and ambiguous," "a rambling narrative with a repetition of various factual allegations and irrelevant detail," "rife with irrelevancy, redundancy, and argumentativeness," with allegations that "are unnecessarily detailed and verbose, and are evidentiary in nature," such that the actual relief sought by the Complaint is unclear. Defendants' Memorandum at 2. Plaintiff opposes Defendants' Motion on the basis that "too much brevity will prevent Plaintiff from stating a claim upon which relief can be granted," which would position the Complaint to be dismissed for failure to state a claim. Plaintiff's Memorandum at 1-2. In further support of the motion, Defendants argue that Plaintiff's Memorandum fails to "clarify the confusing nature of the complaint or remedy any of its defects." Murphy Reply Declaration ¶ 4. In further opposition to the motion, Plaintiff provides definitions for several terms appearing in the Complaint. Plaintiff's Sur-Reply ¶¶ 1-2.

1. Motion for a More Definite Statement

Defendants move pursuant to Rule 12(e) for a more definite statement, asserting the Complaint contains so many redundant, immaterial, and impertinent allegations as to be vague, rendering it unreasonable to expect Defendants to prepare a response. Defendants' Memorandum at 5. As relevant, Fed. R. Civ. P. 12(e) provides that A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.

Fed. R. Civ. P. 12(e) ("Rule 12(e)"). "Whether to grant a motion for a more definite statement is in the discretion of the court." Kuklachev v. Gelfman, 600 F.Supp.2d 437, 456 (E.D.N.Y. 2009) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1377 (2d ed. 1990), and Vaden v. Lantz, 459 F.SUpp.2d 149, 150 (D.Conn. 2006)).

"Motions pursuant to Rule 12(e) are disfavored and should not be granted unless the complaint is so excessively vague and ambiguous as to be unintelligible and as to prejudice the defendant seriously in attempting to answer it." Greater N.Y. Auto. Dealers Ass'n v. Envtl. Sys. Testing, Inc., 211 F.R.D. 71, 76 (E.D.N.Y. 2002). "The rule is designed to remedy unintelligible pleadings, not to correct for lack of detail." Kuklachev, 600 F.Supp.2d at 456. A motion for a more definite statement is only warranted if the complaint does not provide a short and plain statement as required by Fed.R.Civ.P. 8. See Home & Nature Inc. v. Sherman Specialty Co., Inc., 322 F.Supp.2d 260, 265 (E.D.N.Y. 2004). Furthermore, "[m]otions for a more definite statement are generally disfavored because of their dilatory effect. The preferred course is to encourage the use of discovery procedures to apprise the parties ...

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