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Christopher A. Henry v. R&R Larry Davis and Governor andrew M. Cuomo

October 20, 2011

CHRISTOPHER A. HENRY, PLAINTIFF,
v.
R&R LARRY DAVIS AND GOVERNOR ANDREW M. CUOMO, DEFENDANTS. :



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY

DOCUMENT

DOC #: _________________

ORDER ADOPTING

Pro se Plaintiff Christopher A. Henry ("Henry") brings this action against Governor Andrew M. Cuomo ("Cuomo")*fn1 and Chief of the New York City Department of Corrections ("DOC") Larry Davis ("Davis") (collectively, "Defendants") under the Civil Rights Act, 42 U.S.C. § 1983 ("Section 1983"). At the time Henry filed his petition, he was a prisoner at Rikers Island. Henry alleges that the telephone time allotted to him at Rikers Island is too short, and that the time limits on his phone use deprived him of constitutional rights. He seeks both compensatory damages and injunctive relief.

Defendant Davis moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. On August 1, 2011, Magistrate Judge James L. Cott issued a Report and Recommendation ("R&R"), recommending that Davis's motion to dismiss be granted in its entirety and that Henry's claims against Cuomo be dismissed sua sponte with prejudice.

Henry filed an objection to the R&R on September 26, 2011, six weeks past the fourteen day period to file a written objection. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P 72(b). The Court has reviewed the R&R and Henry's objections. For the reasons that follow, the Court adopts Magistrate Judge Cott's Report and Recommendation in its entirety. Henry's claims are, therefore, DISMISSED WITH PREJUDICE.

BACKGROUND*fn2

I. Facts

On September 1, 2010, Henry was making a long distance call "to [his] love[d] ones," from the Housing Unit at Rikers Island prison, when "the phone cut[ ] off abruptly." In another incident, Henry was unable to complete a business transaction over the phone because he exceeded the time limit. Henry alleges that he suffered "[e]mbarrasment," "lost bus[i]ness," and "cruel and unusual punishment" from these incidents.

After Henry instituted this action, he was moved from the Rikers Island prison to the Kirby Forensic Psychiatric Center.

II. Procedural History

On October 1, 2010, Henry filed a complaint in this action against Defendants alleging that the limitations on his telephone use deprived him of a constitutional right in violation of Section 1983. Henry seeks expanded phone privileges, and $99,999,000,000.00 in compensatory damages.

On October 15, 2010, the Court referred this case to Magistrate Judge Cott for general pre-trial supervision and dispositive motions. On March 28, 2011, Davis moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Davis advanced four arguments: (1) Henry fails to allege a cognizable federal claim; (2) Henry fails to allege that Davis was personally involved in the alleged Section 1983 violation; (3) Henry's claims for compensatory damages are barred because he does not allege he suffered any physical harm; and (4) Davis is entitled to qualified immunity. While Defendant Cuomo did not formally respond, the Officer of the ...


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