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Alfredo Victoria Nuwaubian Moor v. Brian Fischer

July 22, 2011


The opinion of the court was delivered by: P. Kevin Castel, District Judge


P. KEVIN CASTEL, District Judge: Plaintiff Alfredo Victoria, an inmate in the New York Department of Corrections ("DOCS"), who, at all times relevant to the Third Amended Complaint, was incarcerated at Green Haven Correctional Facility ("Green Haven"), brings suit pro se against certain prison officials at Green Haven seeking damages for violations of rights protected under the United States Constitution. Read generously, the Third Amended Complaint asserts claims under 42 U.S.C. § 1983 for excessive force and deliberate indifference to serious medical needs in violation of the Eighth Amendment. The defendants now move to dismiss the Third Amended Complaint. For the reasons explained below, the motion is granted.


On or about May 17, 2010, plaintiff filed his initial complaint naming Brian Fischer, DOCS Commissioner, David Paterson, then New York State Governor, William Lee, Superintendent of Green Haven, and multiple "John Doe" correctional officers. (Docket # 2.) By Order dated May 17, 2010, Chief Judge Loretta A. Preska sua sponte dismissed plaintiff's Complaint as against defendants Fischer and Paterson finding such claims barred under the Eleventh Amendment to the United States Constitution. (Docket # 3.)

Plaintiff has amended his Complaint three times in an attempt to identify the "John Doe" defendants. (Docket # 6, 7, 13.) The Third Amended Complaint, filed on or about October 4, 2010, names, in addition to Superintendent Lee, Sergeant O'Connor, Correction Officer Jeffrey MacIsaac, Correction Officer Anthony Cefaloni and Correction Officer Steven Purcell, all Green Haven employees. (Third Am. Compl. § I.B.)

According to plaintiff's Third Amended Complaint, on December 30, 2009, while housed on H-Block at Green Haven, "[defendant Sgt.] Occoner [sic] held me against the bars while John Doe broke my leg while I Victorio was [hand]cuffed." (Id. at § II.D.) Plaintiff further alleges that he was not given medical care for his broken leg "for over 6 days" and that he was "left in isolation with broken leg." (Id.) Plaintiff also states that he has "been denied To and From Reports [and] Incident Reports." (Id.) Plaintiff seeks monetary damages for the injuries he sustained. (Id. at § V.)


I. Motion to Dismiss Pursuant to Rule 12(b)(6)

A pro se complaint is reviewed under "less stringent standards than formal pleadings drafted by lawyers . . . ." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). A plaintiff's pro se pleadings "must be read liberally and should be interpreted 'to raise the strongest arguments that they suggest.'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

Rule 8(a)(2), Fed. R. Civ. P., requires only "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted) (alteration in original). To survive a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., "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 Twombly, 550 U.S. at 570). "'Labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do,'" rather, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 555).

In analyzing a motion to dismiss, consideration is generally limited to the factual allegations in the complaint. Rule 12(d), Fed. R. Civ. P. A court, however, may also consider documents incorporated by reference or attached to the complaint as exhibits, documents the plaintiff knew of or possessed and relied upon in framing the complaint and items of which judicial notice may be taken. See Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993). With respect to the latter, the court may take judicial notice of "the records of state administrative procedures, as these are public records, without converting a motion to dismiss to one for summary judgment." Evans v. N.Y. Botanical Garden, 02 Civ. 3591 (RWS), 2002 WL 31002814, *4 (S.D.N.Y. Sept. 4, 2002). Here, this Court takes judicial notice of the records maintained by DOCS in connection with the Inmate Grievance Program, including the records of the Central Office Review Committee ("CORC"), the body that renders final administrative decision under the program.

II. Failure to Allege Personal Involvement "It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010); see Iqbal, 129 S.Ct. at 1948. Here, the plaintiff fails to allege specific wrongdoing sufficient to constitute personal involvement in the alleged constitutional deprivations as to defendants Lee, MacIsaac, Cefaloni and Purcell.

The only reference to defendants MacIsaac, Cefaloni and Purcell is in the caption of the Third Amended Complaint. The body of the Third Amended Complaint contains no allegations indicating if or how these defendants were involved in the claimed excessive force or deliberate indifference to serious medical needs. Additionally, none of the prior versions of plaintiff's complaint contain allegations against these defendants. "It is well-settled that 'where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted.'" Dove v. Fordham Univ., 56 F.Supp.2d 330, 335 (S.D.N.Y. 1999) (quoting Morabito v. Blum, 528 F.Supp. 252, 262 (S.D.N.Y. 1981)); accord McCoy v. Goord, 255 F.Supp.2d 233, 257-58 (S.D.N.Y. 2003) (Chin, J.) (holding the same in a claim filed by pro se prisoner).

As to defendant Superintendent Lee, the body of the Third Amended Complaint similarly does not contain any allegation indicating if or how Lee was involved in the claimed excessive force or deliberate indifference to serious medical needs. The prior versions of the complaint contain a single allegation against Lee. Plaintiff alleges that he grieved to Superintendent Lee in connection with the claimed incident. (Compl. § IV.F.3; Am. Compl. § IV.F.3; Sec. Am. Compl. § IV.E.) This single allegation is insufficient to establish that Lee was responsible for the underlying incident, plaintiff's resulting injuries, or his subsequent treatment or lack thereof. The mere receipt of a letter, complaint or grievance from an inmate is insufficient to establish a claim of personal involvement by a correctional supervisor. See ...

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