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Robert Rivera v. John B. Lempke

September 14, 2011


The opinion of the court was delivered by: David G. Larimer United States District Judge


Plaintiff, Robert Rivera, appearing pro se, filed this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), has sued eight defendants, all of whom were at all relevant times employed by DOCS, alleging that they violated his constitutional rights in connection with certain incidents in 2007, while plaintiff was confined at Five Points Correctional Facility. Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.


Plaintiff alleges that on August 11, 2007, defendant Sergeant Shepanski filed a false misbehavior report against him, in retaliation for plaintiff's previous filing of grievances against Shepanski. On August 23, 2007, defendant Penny Shea, the hearing officer on those charges, found plaintiff guilty and sentenced him to three months in the Special Housing Unit ("SHU"). Plaintiff alleges that Shea's finding was against the weight of the evidence and that it was arbitrary and capricious.

Plaintiff's allegations go on in the same vein, alleging that he continued to file grievances against defendants, and that they either denied the grievances, or failed to properly process the grievances, or that they filed misbehavior reports against him in retaliation for those grievances. In all, the complaint cites eleven grievances filed by plaintiff. In addition to the SHU sentence noted above, plaintiff also alleges that on November 1, 2007, defendant Lieutenant Giannino found plaintiff guilty in connection with another misbehavior report, and sentenced him to twenty-nine days in "cell confinement in addition to thirty days of loss of commissary" and other privileges. Dkt. #4 at 9 ¶ 11.

The amended complaint (Dkt. #4) formally sets out two claims, although each of them can be broken down into several discrete claims. The first alleges that Shepanski "filed a retaliatory misbehavior report" against plaintiff, and that defendants Shea and P. O'Neal "both participated in the retaliation against [plaintiff] by subjecting [him] to disciplinary sanctions ... ." Dkt. #4 at 11. The second alleges that on October 26, 2007, defendant Sergeant Abate filed a retaliatory false misbehavior report against plaintiff, that he did so at the direction of defendants John Lempke and Gerald Guiney, that defendant Lieutenant Metz "processed the report ... knowing that the charges were false," and that defendant Lieutenant Giannino found plaintiff guilty of those charges despite the lack of evidence to support that finding. Id. at 8 ¶ 10, 9 ¶ 11, 12.


I. Official Capacity Claims

The complaint states that all the defendants are sued in both their individual and official capacities. Defendants move to dismiss the official-capacity claims on the ground that they are barred under the Eleventh Amendment.

Claims for damages against state employees in their official capacities are deemed claims against the state itself, and are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 166 (1985); Dube v. State Univ. of New York, 900 F.2d 587, 594-95 (2d Cir. 1990); Brown v. New York State DOCS, 583 F.Supp.2d 404, 411 (W.D.N.Y. 2008). To the extent that plaintiff seeks money damages, then, all of plaintiff's official-capacity claims are dismissed.*fn1

II. Statute of Limitations

Defendants contend that the first cause of action should be dismissed as barred by the three-year limitations period applicable to § 1983 actions. See Mixon v. Sedita, 757 F.Supp.2d 229, 231 (W.D.N.Y. 2010). Defendants point out that the complaint gives August 11, 2007 as the date of the incident giving rise to the claim, see Dkt. #4 at 11, and that the complaint was filed in September 2010, more than three years after the date of that incident.

In Gonzalez v. Hasty, ___ F.3d ___, 2011 2463562 (2d Cir. 2011), however, the Court of Appeals for the Second Circuit held "that the applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process." Id. at *5 (quoting Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005)). In the case at bar, plaintiff alleges that his grievance concerning the August 11 matter was not resolved until December 5, 2007. See Dkt. ...

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