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Norman B. Calvert, Also Known As Caprice v. Honorable David Paterson

April 13, 2011

NORMAN B. CALVERT, ALSO KNOWN AS CAPRICE, PLAINTIFF,
v.
HONORABLE DAVID PATERSON, GOVERNOR, THE STATE OF NEW YORK; MR. ANDREW CUOMO, ATTORNEY GENERAL, THE STATE OF NEW YORK; MR. BRIAN FISCHER, COMMISSIONER, DEPARTMENT OF CORRECTIONAL SERVICES; MR. DALE ARTUS, SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY; MR. PETE FREDERICK, CHAIRPERSON, CLINTON CF MEDIA REVIEW COMMITTEE; AND MR. J. KOWALSKI, CHAIRPERSON, CLINTON CF MEDIA REVIEW COMMITTEE, DEFENDANTS.



The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge

REPORT-RECOMMENDATION AND ORDER*fn1

Plaintiff pro se Norman B. Calvert, an inmate formerly 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 the Governor and Attorney General of New York, the DOCS Commissioner, and three DOCS employees violated his constitutional rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Am. Compl. (Dkt. No. 8). Presently pending is defendants' motion for a judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Dkt. No. 19. Calvert has not responded to the motion. For the following reasons, it is recommended that defendants' motion be granted.

I. Background

The facts are related herein in the light most favorable to Calvert as the non-moving party. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir.1999).

In 1982, inmates at the Auburn and Clinton Correctional Facilities brought consolidated class actions against officials at those facilities and DOCS alleging that the defendants were violating inmates' rights under the First and Fourteenth Amendments by their policies regarding inmates' receipt of publications mailed or received at the correctional facilities. Dkt. No. 19-3 [hereinafter "Dumont Stip."] at 1-2. The cases were resolved by a stipulated settlement in 1983. Id. The stipulation required DOCS, inter alia, to amend its policy contained in DOCS Directive 4572 regarding what publications could be received by inmates and to provide training to any individuals who served on a facility's Media Review Committee, which was responsible for implementing Directive 4572. Id.

Calvert contends that DOCS has failed to comply with the provisions of Directive 4572 and the Dumont stipulation. Am. Compl. ¶ . Calvert contends that defendants have not been training members of the media committees as enumerated in paragraph 22 of the Dumont stipulation. Id. ¶¶ 22-24. Calvert attempted to obtain records documenting DOCS alleged training compliance through Freedom of Information Law (FOIL) requests which all went unanswered. Id. ¶¶ 25-28. Moreover, due to defendants non-compliance, Calvert has been "unlawfully den[ied] . . . access to [his] 'research' magazines . . . ." Id. ¶ 37. Calvert provides no additional information about the type of research magazines to which he referred, what their contents were, or why they were disallowed at the facility. Calvert has also stated that he "did not exhaust administrative remedies in this action; since all administrative remedies were properly exhausted way back in 1982 . . . ." (id. ¶ 16) and that he could not "imagine how any further exhaustion . . . can be required . . . especially since it is simply a revisiting a ruling made over a quarter century ago." Id. ¶ 18.

II. Discussion

In Calvert's amended complaint, he alleges a violation of his First Amendment rights when defendants refused to provide him, and other inmates similarly situated, their "research magazines."*fn2 Additionally, liberally construing Calvert's contentions, he has also alleged a due process violation for DOCS' failure to comply with its own provisions and adequately train its own employees. Defendants move to dismiss the amended complaint because Calvert has failed to (1) exhaust his administrative remedies and (2) allege the personal involvement of defendants Paterson, Cuomo, Fischer, and Artus.*fn3

A. Legal Standard*fn4 "The standard for granting a Rule 12(c) motion . . . is identical to that of a Rule 12(b)(6) motion for failure to state a claim." Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (citations omitted). Rule 12(b)(6) authorizes dismissal of a complaint that states no actionable claim. 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, 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 a legal conclusion couched as a factual allegation.")).

Accordingly, to defeat a motion to dismiss, a claim must include "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 . . . it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].")); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (holding that, "[o]n 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. (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 ...


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