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John H. White v. Raymond Drake

September 26, 2011

JOHN H. WHITE, PLAINTIFF,
v.
RAYMOND DRAKE, CORRECTIONAL OFFICER, UPSTATE CORRECTIONAL FACILITY, DEFENDANT.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

08-A-3366

DECISION and ORDER

Currently before the Court, in this pro se prisoner civil rights action filed by John H. White ("Plaintiff") against Upstate Correctional Facility Correctional Officer Raymond Drake ("Defendant") pursuant to 42 U.S.C. § 1983, are the following: (1) Defendant's motion to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 12); (2) United States Magistrate Judge David R. Homer's Report-Recommendation recommending that Defendant's motion be granted and that Plaintiff's Complaint be dismissed without prejudice (Dkt. No. 44); and (3) Plaintiff's cross-motion to amend his Complaint pursuant to Fed. R. Civ. P. 15(a)(2) (Dkt. No. 45). For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Defendant's motion is granted; Plaintiff's Complaint is dismissed without prejudice; and Plaintiff's cross-motion to amend his Complaint is denied.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Plaintiff commenced this action on August 9, 2010. (Dkt. No. 1.) Generally, liberally construed, Plaintiff's Complaint alleges that, on June 27, 2010, Defendant wrongfully prevented him from seeing a visitor, and assaulted him during a disagreement regarding the visitor. (Id.)

More specifically, Plaintiff alleges as follows. After being notified that he had a visitor on June 27, 2010, and waiting more than 30 minutes for an escort, Plaintiff addressed his concerns with Defendant regarding his "visit being delayed." (Id.) Defendant shouted at Plaintiff that his visit would not be taking place because his visitor had been apprehended by the Franklin County Police for drug smuggling--a fact that was false. (Id.) When Plaintiff complained of "official misconduct," by "speaking in the open area under [his cell] door," Defendant "kicked the door" of Plaintiff's cell "several times," "causing injury to [Plaintiff's] mouth, nose & right jaw," more specifically, causing his "nose . . . to bleed on the floor," and him to experience "pain in the right side of [his] jaw." (Id.) Aware that the events were being recorded "on VHS/Video," Plaintiff asked Defendant why he had kicked the door; and Defendant offered a response that indicated a retaliatory and/or malicious intent. (Id.) Finally, after Plaintiff submitted a grievance to a "Grievance Unit Investigator" regarding Defendant's conduct, Defendant "willfully, knowingly, and intelligently submitted a written statement denying the allegations," which "denied Plaintiff his right to an [sic] fair and impartial investigation . . . ." (Id.)

Construed with the utmost of special liberality, Plaintiff's Complaint attempts to assert the following five claims based on the above-described factual allegations: (1) a claim that Defendant subjected him to verbal harassment followed by a subsequent physical assault, rendering the verbal harassment actionable under the Eighth Amendment; (2) a claim that Defendant intentionally made false statements to Plaintiff regarding his visitor, in violation of the Eighth and/or Fourteenth Amendment; (3) a claim that Defendant wrongfully interfered with Plaintiff's right to visitation from and communication with the "outside world," in violation of the First, Eighth and/or Fourteenth Amendments; (4) a claim that Defendant wrongfully interfered with Plaintiff's right to the grievance process by intentionally making false statements to the Grievance Unit Investigator, in violation of the First and/or Fourteenth Amendments; and (5) a claim that Defendant subjected him to excessive force, in violation of the Eighth Amendment. (See generally id.; see also Dkt. No. 17 [Plf.'s Response to Def.'s Motion to Dismiss].)*fn1

Familiarity with the remaining factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties.

B. Defendant's Motion to Dismiss

On November 15, 2010, Defendant filed a motion to dismiss the Complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 12.) Generally, in his motion, Defendant asserts the following eight arguments: (1) to the extent that Defendant is sued in his official capacity, he is protected from liability as a matter of law by the Eleventh Amendment; (2) Plaintiff's claim of verbal harassment (under the Eighth and/or Fourteenth Amendments) should be dismissed, because Plaintiff has no constitutional right to be free from verbal harassment; (3) Plaintiff's claim that Defendant intentionally made false statements to Plaintiff regarding his visitor (in violation of the Eighth and/or Fourteenth Amendments) should be dismissed, because Plaintiff has no constitutional right to be free from false statements; (4) Plaintiff's claim that Defendant wrongfully interfered with Plaintiff's right to visitation (in violation of the First, Eighth and/or Fourteenth Amendments) should be dismissed, because Plaintiff has no constitutional right to visitation; (5) Plaintiff's claim that Defendant wrongfully interfered with Plaintiff's right to the grievance process (in violation of the First and/or Fourteenth Amendments) should be dismissed, because Plaintiff has no constitutional right to the grievance process; (6) Plaintiff's claim that Defendant subjected him to excessive force (in violation of the Eighth Amendment) should be dismissed, because Plaintiff has failed to allege facts plausibly suggesting that the use of force against him was "objectively, sufficiently serious"; (7) in the alternative, all of Plaintiff's claims should be dismissed, because Defendant is protected from liability as a matter of law by the doctrine of qualified immunity; and (8) Defendant is entitled to a protective order, pursuant Fed. R. Civ. P. 26(c), staying discovery in this action, pending the Court's determination of Defendant's motion. (Dkt. No.12, Attach. 1.)

On November 24, 2010, Plaintiff filed a response to Defendant's motion. (Dkt. No. 17.) Generally, in his response, Plaintiff asserts the following eight arguments: (1) he is not suing Defendant in his official capacity but his individual capacity; (2) he was subjected to both verbal harassment and physical assault, which, when combined, may constitute cruel and unusual punishment under the Eighth Amendment; (3) Defendant's false statements are actionable because they were intended to annoy and harass Plaintiff in violation of 7 NYCRR 701.2(e) (and because they were accompanied by a physical assault); (4) Defendant's challenge to Plaintiff's interference-with-visitation claim is "unnecessary," because Plaintiff asserts no such claim; (5) Plaintiff does have a constitutional right to the grievance process, under the First and/or Fourteenth Amendments, and Defendant violated that right by giving false statements during that process; (6) Plaintiff has alleged facts plausibly suggesting that the use of force against him was "objectively, sufficiently serious," by alleging facts plausibly suggesting that [a] Defendant's use of force was malicious and/or sadistic, with the purpose of causing harm, [b] Defendant's use of force caused Plaintiff wanton pain, and [c] Defendant's use of force violated N.Y. Correction Law § 137(5); (7) Defendant is not entitled to qualified immunity, because Plaintiff has alleged facts plausibly suggesting that Defendant was aware of the regulations and law; and (8) while Defendant is entitled to a protective order barring discovery, the Court should direct Defendant to provide any copies of audio/video tapes relating to the alleged incident(s) giving rise to this action. (Id.)

On December 1, 2010, Defendant filed (with leave of the Court) a supplemental memorandum of law in support of its motion to dismiss. (Dkt. No. 21.) Generally, in that supplemental memorandum of law, Defendant argues that, because Plaintiff has conceded (in Paragraph 4 of his Complaint as well as in Dkt. Nos. 10 and 11) that he failed to exhaust his administrative remedies before filing this action, this action should be dismissed. (Id.)

On December 3, 2010, Plaintiff filed (with leave of the Court) a response to Defendant's supplemental memorandum of law. (Dkt. No. 25.) Generally, liberally construed, Plaintiff's response asserts the following three arguments: (1) he should not be required to exhaust his administrative remedies because those remedies (through actions of various administrative officials) have been rendered unavailable to him; (2) if the Court would allow, he would file an Amended Complaint asserting claims arising from the actions of various administrative officials in rendering his administrative remedies unavailable to him; and (3) even if the Court were inclined to dismiss this action due to his failure to exhaust his administrative remedies, it should do so only without prejudice. (Id.)

On January 14, 2011, Defendant filed (with leave of the Court) a reply to Plaintiff's response. (Dkt. No. 29.) Generally, in that reply, Defendant repeats his argument that this action should be dismissed based on Plaintiff's failure to exhaust his administrative remedies. (Id.) In addition, Defendant asserts arguments not relevant to the exhaustion issue but relevant to the arguments raised in the parties' prior exchange of briefs. (Id.)*fn2

On January 24, 2011, without prior leave of the Court, Plaintiff filed a sur-reply to Defendant's reply. (Dkt. No. 30.) Generally, in that unauthorized sur-reply, Plaintiff argues that he "stands by" his prior submissions to the Court. (Id.)

On July 25, 2011, the Court issued an Order staying further proceedings in this case until September 1, 2011, "to allow DOCS and CORC to render the final disposition to White's appeal in the present case." (Dkt. No. 39, at 3.)

On August 1, 2011, Defendant filed a letter advising the Court that CORC rendered a final disposition to Plaintiff's appeal on November 24, 2010. (Dkt. No. 40.)

On August 8, 2011, Plaintiff filed a response to Defendant's letter. (Dkt. No. 42.) Generally, liberally construed, that response argues as follows: (1) his original Complaint in this action should be dismissed without prejudice, with leave "to renew or amend within 45 days"; and (2) when that original Complaint is dismissed, an Order should be issued that [a] grants Plaintiff 45 days in which to file an Amended Complaint, which, inter alia, will assert claims arising from correctional officials' alleged intentional destruction of the audio/video tape recording of the incident giving rise to his original complaint, and [b] lifts the stay currently imposed on discovery, so that Plaintiff can obtain documents relevant to the investigation of his grievance. (Dkt. No. 42.)

On August 10, 2011, Defendant filed a letter advising the Court that, while Defendant does not oppose Plaintiff's request to dismiss the action without prejudice, Defendant "would oppose a motion to amend the complaint as futile, based, inter alia, upon plaintiff's failure to ...


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